WITH THE REPORTING REQUIREMENTS OF SAID RULE 144 OF THE
SECURITIES ACT, AND OF THE EXCHANGE ACT (AT ANY TIME AFTER IT HAS BECOME SUBJECT
TO SUCH REPORTING REQUIREMENTS); A COPY OF THE MOST RECENT ANNUAL OR QUARTERLY
REPORT OF THE COMPANY FILED WITH THE COMMISSION; AND SUCH OTHER REPORTS AND
DOCUMENTS AS A HOLDER MAY REASONABLY REQUEST IN CONNECTION WITH AVAILING ITSELF
OF ANY RULE OR REGULATION OF THE SEC ALLOWING IT TO SELL ANY SUCH SECURITIES
WITHOUT REGISTRATION.
ARTICLE 3.
MISCELLANEOUS.
3.1.
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
UNDER THE LAWS OF THE STATE OF DELAWARE IN ALL RESPECTS.
3.2.
SUCCESSORS AND ASSIGNS.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED
HEREIN, THE PROVISIONS HEREOF SHALL INURE TO THE BENEFIT OF, AND BE BINDING
UPON, THE PARTIES HERETO AND THEIR RESPECTIVE SUCCESSORS, ASSIGNS, HEIRS,
EXECUTORS, AND ADMINISTRATORS AND SHALL INURE TO THE BENEFIT OF AND BE
ENFORCEABLE BY EACH PERSON WHO SHALL BE A HOLDER OF REGISTRABLE SECURITIES FROM
TIME TO TIME; PROVIDED, HOWEVER, THAT PRIOR TO THE RECEIPT BY THE COMPANY OF
ADEQUATE WRITTEN NOTICE OF THE TRANSFER OF ANY REGISTRABLE SECURITIES SPECIFYING
THE FULL NAME AND ADDRESS OF THE TRANSFEREE, THE COMPANY MAY DEEM AND TREAT THE
PERSON LISTED AS THE HOLDER OF SUCH SHARES IN ITS RECORDS AS THE ABSOLUTE OWNER
AND HOLDER OF SUCH SHARES FOR ALL PURPOSES, INCLUDING THE PAYMENT OF DIVIDENDS
OR ANY REDEMPTION PRICE.
3.3.
ENTIRE AGREEMENT.
THIS AGREEMENT, THE MERGER AGREEMENT AND THE
OTHER DOCUMENTS DELIVERED PURSUANT THERETO CONSTITUTE THE FULL AND ENTIRE
UNDERSTANDING AND AGREEMENT BETWEEN THE PARTIES WITH REGARD TO THE SUBJECTS
HEREOF AND NO PARTY SHALL BE LIABLE OR BOUND TO ANY OTHER IN ANY MANNER BY ANY
ORAL OR WRITTEN REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS EXCEPT AS
SPECIFICALLY SET FORTH HEREIN AND THEREIN.
EACH PARTY EXPRESSLY REPRESENTS AND
WARRANTS THAT IT IS NOT RELYING ON ANY ORAL OR WRITTEN REPRESENTATIONS,
WARRANTIES, COVENANTS OR AGREEMENTS OUTSIDE OF THIS AGREEMENT.
3.4.
SEVERABILITY.
IN THE EVENT ONE OR MORE OF THE PROVISIONS OF THIS
AGREEMENT SHOULD, FOR ANY REASON, BE HELD TO BE INVALID, ILLEGAL OR
UNENFORCEABLE IN ANY RESPECT, SUCH INVALIDITY, ILLEGALITY, OR UNENFORCEABILITY
SHALL NOT AFFECT ANY OTHER PROVISIONS OF THIS AGREEMENT, AND THIS
12
AGREEMENT SHALL BE CONSTRUED AS IF SUCH INVALID, ILLEGAL OR UNENFORCEABLE
PROVISION HAD NEVER BEEN CONTAINED HEREIN.
3.5.
AMENDMENT AND WAIVER.
(A)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THIS AGREEMENT MAY BE
AMENDED OR MODIFIED ONLY UPON THE WRITTEN CONSENT OF THE COMPANY AND THE HOLDERS
OF AT LEAST A MAJORITY OF THE THEN-OUTSTANDING REGISTRABLE SECURITIES.
(B)
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED, THE OBLIGATIONS OF THE
COMPANY AND THE RIGHTS OF THE HOLDERS UNDER THIS AGREEMENT MAY BE WAIVED ONLY
WITH THE WRITTEN CONSENT OF THE HOLDERS OF AT LEAST A MAJORITY OF THE
THEN-OUTSTANDING REGISTRABLE SECURITIES.
(C)
FOR THE PURPOSES OF DETERMINING THE NUMBER OF HOLDERS ENTITLED TO
VOTE OR EXERCISE ANY RIGHTS HEREUNDER, THE COMPANY SHALL BE ENTITLED TO RELY
SOLELY ON THE LIST OF RECORD HOLDERS OF ITS