with respect to the Investor, its
permitted assigns; and this Agreement will not be assignable by operation of law
or otherwise (any attempted assignment in contravention hereof being null and
void), except that the Investor shall be permitted to assign its rights or
obligations hereunder (i) to any Affiliate entity, but only if the transferee
agrees in writing for the benefit of the Company (with a copy thereof to be
furnished to the Company (any such transferee shall be included in the term
"Investor")); provided, further, that no such assignment shall relieve the
Investor of any of its obligations under this Agreement and (ii) as and to the
extent provided in Section 4.10.
For the avoidance of doubt, the
confidentiality agreement by and between the Company and the Investor, shall be
void and supplanted by the terms of this Agreement.
5.9
Other Definitions.
Wherever required by the context of this
Agreement, the singular shall include the plural and vice versa, and the
masculine gender shall include the feminine and neuter genders and vice versa,
and references to any agreement, document or instrument shall be deemed to refer
to such agreement, document or instrument as amended, supplemented or modified
from time to time.
All article, section, paragraph or clause references not
attributed to a particular document shall be references to such parts of this
Agreement, and all exhibit, annex and schedule references not attributed to a
particular document shall be references to such exhibits, annexes and schedules
to this Agreement.
When used herein:
(1)
THE TERM "SUBSIDIARY" MEANS THOSE CORPORATIONS, BANKS, SAVINGS
BANKS, ASSOCIATIONS AND OTHER PERSONS OF WHICH SUCH PERSON OWNS OR CONTROLS 51%
OR MORE OF THE OUTSTANDING EQUITY SECURITIES EITHER DIRECTLY OR INDIRECTLY
THROUGH AN UNBROKEN CHAIN OF ENTITIES AS TO EACH OF WHICH 51% OR MORE OF THE
OUTSTANDING EQUITY SECURITIES IS OWNED DIRECTLY OR INDIRECTLY BY ITS PARENT;
PROVIDED, HOWEVER, THAT THERE SHALL NOT BE INCLUDED ANY SUCH ENTITY TO THE
EXTENT THAT THE EQUITY SECURITIES OF SUCH ENTITY WERE ACQUIRED IN SATISFACTION
OF A DEBT PREVIOUSLY CONTRACTED IN GOOD FAITH OR ARE OWNED OR CONTROLLED IN A
BONA FIDE FIDUCIARY CAPACITY;
(2)
THE TERM "AFFILIATE" MEANS, WITH RESPECT TO ANY PERSON, ANY PERSON
DIRECTLY OR INDIRECTLY CONTROLLING, CONTROLLED BY OR UNDER COMMON CONTROL WITH,
SUCH OTHER PERSON.
FOR PURPOSES OF THIS DEFINITION, "CONTROL" (INCLUDING, WITH
CORRELATIVE MEANINGS, THE TERMS "CONTROLLED BY" AND "UNDER COMMON CONTROL WITH")
WHEN USED WITH RESPECT TO ANY PERSON, MEANS THE POSSESSION, DIRECTLY OR
INDIRECTLY, OF THE POWER TO CAUSE THE DIRECTION OF MANAGEMENT AND/OR POLICIES OF
SUCH PERSON, WHETHER THROUGH THE OWNERSHIP OF VOTING SECURITIES BY CONTRACT OR
OTHERWISE;
(3)
THE WORD "OR" IS NOT EXCLUSIVE;
57
(4)
THE WORDS "INCLUDING," "INCLUDES," "INCLUDED" AND "INCLUDE" ARE
DEEMED TO BE FOLLOWED BY THE WORDS "WITHOUT LIMITATION";
(5)
THE TERMS "HEREIN," "HEREOF" AND "HEREUNDER" AND OTHER WORDS OF
SIMILAR IMPORT REFER TO THIS AGREEMENT AS A WHOLE AND NOT TO ANY PARTICULAR
SECTION, PARAGRAPH OR SUBDIVISION;
(6)
"BUSINESS DAY" MEANS ANY