PARTIES WHICH DO NOT
PREVAIL IN SUCH PROCEEDINGS SHALL SEVERALLY, BUT NOT JOINTLY, PAY THEIR PRO RATA
SHARE OF THE REASONABLE ATTORNEYS' FEES AND OTHER REASONABLE OUT-OF-POCKET COSTS
AND EXPENSES INCURRED BY THE PREVAILING PARTY IN SUCH PROCEEDINGS.
11.6.
AMENDMENTS AND WAIVERS.
THIS AGREEMENT SHALL NOT BE AMENDED AND
THE OBSERVANCE OF ANY TERM OF THIS AGREEMENT SHALL NOT BE WAIVED (EITHER
GENERALLY OR IN A PARTICULAR INSTANCE AND EITHER RETROACTIVELY OR PROSPECTIVELY)
WITHOUT THE PRIOR WRITTEN CONSENT OF THE COMPANY AND THE REQUISITE HOLDERS;
PROVIDED, HOWEVER, THAT ANY PROVISION HEREOF WHICH IMPAIRS THE RIGHTS OR
INCREASES THE OBLIGATIONS OF A SPECIFIC INVESTOR DISPROPORTIONATELY TO OTHER
INVESTORS SHALL NOT BE AMENDED OR WAIVED WITHOUT THE PRIOR WRITTEN CONSENT OF
THE COMPANY AND THAT PARTICULAR INVESTOR; PROVIDED, FURTHER, THAT ANY PROVISION
AFFECTING THE RIGHTS OR OBLIGATIONS OF LEAD INVESTOR COUNSEL, SHALL NOT BE
WAIVED OR AMENDED WITHOUT THE PRIOR WRITTEN CONSENT OF THE LEAD INVESTOR
COUNSEL.
ANY AMENDMENT OR WAIVER EFFECTED IN ACCORDANCE WITH THIS SECTION 11.6
SHALL BE BINDING UPON EACH HOLDER OF ANY SECURITIES PURCHASED UNDER THIS
AGREEMENT AT THE TIME OUTSTANDING, EACH FUTURE HOLDER OF ALL SUCH SECURITIES,
AND THE COMPANY.
11.7.
PUBLICITY.
NO PUBLIC RELEASE OR ANNOUNCEMENT CONCERNING THE
TRANSACTIONS
38
CONTEMPLATED HEREBY SHALL BE ISSUED BY THE COMPANY OR THE INVESTORS WITHOUT THE
PRIOR CONSENT OF THE COMPANY (IN THE CASE OF A RELEASE OR ANNOUNCEMENT BY THE
INVESTORS) OR THE LEAD INVESTOR, AS REPRESENTATIVE OF THE INVESTORS (IN THE CASE
OF A RELEASE OR ANNOUNCEMENT BY THE COMPANY) (WHICH CONSENTS SHALL NOT BE
UNREASONABLY WITHHELD), EXCEPT AS SUCH RELEASE OR ANNOUNCEMENT MAY BE REQUIRED
BY LAW OR THE APPLICABLE RULES OR REGULATIONS OF ANY SECURITIES EXCHANGE OR
SECURITIES MARKET ON WHICH THE SECURITIES ARE THEN LISTED AND TRADING, IN WHICH
CASE THE COMPANY OR THE LEAD INVESTOR, AS THE CASE MAY BE, SHALL ALLOW THE
INVESTORS OR THE COMPANY, AS APPLICABLE, TO THE EXTENT REASONABLY PRACTICABLE IN
THE CIRCUMSTANCES, REASONABLE TIME TO COMMENT ON SUCH RELEASE OR ANNOUNCEMENT IN
ADVANCE OF SUCH ISSUANCE.
11.8.
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT THAT IS PROHIBITED
OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT
INVALIDATING THE REMAINING PROVISIONS HEREOF BUT SHALL BE INTERPRETED AS IF IT
WERE WRITTEN SO AS TO BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, AND ANY SUCH PROHIBITION OR UNENFORCEABILITY IN ANY JURISDICTION
SHALL NOT INVALIDATE OR RENDER UNENFORCEABLE SUCH PROVISION IN ANY OTHER
JURISDICTION.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES HEREBY
WAIVE ANY PROVISION OF LAW WHICH RENDERS ANY PROVISION HEREOF PROHIBITED OR
UNENFORCEABLE IN ANY RESPECT.
11.9.
ENTIRE AGREEMENT.
THIS AGREEMENT, INCLUDING THE EXHIBITS AND
DISCLOSURE SCHEDULES, AND THE OTHER TRANSACTION DOCUMENTS CONSTITUTE THE ENTIRE
AGREEMENT AMONG THE PARTIES HEREOF WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, BOTH ORAL AND
WRITTEN, BETWEEN THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
THEREOF.