of its rights hereunder without
the consent of the Company, provided, however, that any such assignment shall
not release such Buyer from its obligations hereunder unless such obligations
are assumed by such assignee and the Company has consented to such assignment
and assumption, which consent shall not be unreasonably withheld.
(H)
NO THIRD PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
PERMITTED SUCCESSORS AND ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY
PROVISION HEREOF BE ENFORCED BY, ANY OTHER PERSON.
(I)
SURVIVAL.
THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY AND THE BUYER CONTAINED IN SECTIONS 2 AND 3 SHALL
SURVIVE THE CLOSING FOR ONE YEAR. THE AGREEMENTS SET FORTH IN THIS SECTION 7
SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO
AND PERFORM, OR CAUSE TO BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND
THINGS, AND SHALL EXECUTE AND DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES,
INSTRUMENTS AND DOCUMENTS, AS THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO
CARRY OUT THE INTENT AND ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(K)
NO STRICT CONSTRUCTION.
THE LANGUAGE USED
IN THIS AGREEMENT WILL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO
EXPRESS THEIR MUTUAL INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED
AGAINST ANY PARTY.
(L)
CONFIDENTIALITY.
THE BUYERS AGREE THAT,
EXCEPT WITH THE PRIOR WRITTEN PERMISSION OF THE COMPANY, THEY SHALL AT ALL TIMES
KEEP CONFIDENTIAL AND NOT DIVULGE, FURNISH OR MAKE ACCESSIBLE TO ANYONE
CONFIDENTIAL INFORMATION, KNOWLEDGE OR DATA CONCERNING OR RELATING TO THE
BUSINESS OR FINANCIAL AFFAIRS OF THE COMPANY TO WHICH SUCH PARTY HAS BEEN OR
SHALL BECOME PRIVY BY REASON OF THIS AGREEMENT, DISCUSSIONS OR NEGOTIATIONS
RELATING TO THIS AGREEMENT.
(M)
LEGAL REPRESENTATION.
EACH BUYER ACKNOWLEDGES
THAT: (A) IT HAS READ THIS AGREEMENT AND THE EXHIBITS HERETO; (B) IT UNDERSTANDS
THAT THE COMPANY HAS BEEN REPRESENTED IN THE PREPARATION, NEGOTIATION, AND
EXECUTION OF THIS AGREEMENT BY WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL
CORPORATION, COUNSEL TO THE COMPANY; (C) IT HAS EITHER BEEN REPRESENTED IN THE
PREPARATION, NEGOTIATION, AND EXECUTION OF THIS AGREEMENT BY LEGAL COUNSEL OF
ITS OWN CHOICE, OR HAS CHOSEN TO FOREGO SUCH REPRESENTATION BY LEGAL COUNSEL
AFTER BEING ADVISED TO SEEK SUCH LEGAL REPRESENTATION; (D) IT UNDERSTANDS THE
TERMS AND CONSEQUENCES OF THIS AGREEMENT AND IS FULLY AWARE OF ITS LEGAL AND
BINDING EFFECT.
(N)
RIGHT OF PARTICIPATION.
(I)
FOR SO LONG AS THE BUYERS, IN THE
AGGREGATE, HOLD FIVE PERCENT (5%) OR MORE OF THE OUTSTANDING SHARES OF THE
COMPANY'S COMMON STOCK (WITH SUCH PERCENTAGE CALCULATED ON A FULLY DILUTED BASIS
AS IF ALL OUTSTANDING CONVERTIBLE SECURITIES WERE CONVERTED INTO THE
13
Company's Common Stock), the Buyers shall have (x) a right of participation to
purchase all or part of their pro rata portion of any New Securities (defined as
any shares of Common Stock or Preferred Stock of the Company issued