York, NY
10106
Attention:
Cynthia Paul
Telecopy No.: (646) 731-5431
with a copy to:
Akin, Gump, Strauss, Hauer and Feld, LLP
590 Madison Avenue
New York, NY
10022
Attention:
Patrick J. Dooley, Esq.
Telecopy No.: (212) 872-1002
or to such other address as such person may have furnished to the other persons
identified in this Section 8(c) in writing in accordance herewith.
(D)
APPROVAL OF HOLDERS. WHENEVER THE CONSENT OR APPROVAL OF HOLDERS
OF A SPECIFIED PERCENTAGE OF REGISTRABLE SECURITIES IS REQUIRED HEREUNDER,
REGISTRABLE SECURITIES HELD BY THE COMPANY OR ITS AFFILIATES (AS SUCH TERM IS
DEFINED IN RULE 405 UNDER THE SECURITIES ACT) (OTHER THAN THE PURCHASER OR
SUBSEQUENT HOLDERS IF SUCH SUBSEQUENT HOLDERS ARE DEEMED TO BE SUCH
19
AFFILIATES SOLELY BY REASON OF THEIR HOLDINGS OF SUCH REGISTRABLE SECURITIES)
SHALL NOT BE COUNTED IN DETERMINING WHETHER SUCH CONSENT OR APPROVAL WAS GIVEN
BY THE HOLDERS OF SUCH REQUIRED PERCENTAGE.
(E)
SUCCESSORS AND ASSIGNS. ANY PERSON WHO PURCHASES ANY REGISTRABLE
SECURITIES FROM THE PURCHASER SHALL BE DEEMED, FOR PURPOSES OF THIS AGREEMENT,
TO BE AN ASSIGNEE OF THE PURCHASER. THIS AGREEMENT SHALL INURE TO THE BENEFIT OF
AND BE BINDING UPON THE SUCCESSORS AND ASSIGNS OF EACH OF THE PARTIES AND SHALL
INURE TO THE BENEFIT OF AND BE BINDING UPON EACH HOLDER OF ANY REGISTRABLE
SECURITIES.
(F)
COUNTERPARTS. THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF
COUNTERPARTS AND BY THE PARTIES HERETO IN SEPARATE COUNTERPARTS, EACH OF WHICH
WHEN SO EXECUTED SHALL BE DEEMED TO BE ORIGINAL AND ALL OF WHICH TAKEN TOGETHER
SHALL CONSTITUTE ONE AND THE SAME AGREEMENT.
(G)
HEADINGS. THE HEADINGS IN THIS AGREEMENT ARE FOR CONVENIENCE OF
REFERENCE ONLY AND SHALL NOT LIMIT OR OTHERWISE AFFECT THE MEANING HEREOF.
(H)
GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REFERENCE TO ITS
CHOICE OF LAW RULES.
(I)
SEVERABILITY. IF ANY TERM, PROVISION, COVENANT OR RESTRICTION OF
THIS AGREEMENT IS HELD TO BE INVALID, ILLEGAL, VOID OR UNENFORCEABLE, THE
REMAINDER OF THE TERMS, PROVISIONS, COVENANTS AND RESTRICTIONS SET FORTH HEREIN
SHALL REMAIN IN FULL FORCE AND EFFECT AND SHALL IN NO WAY BE AFFECTED, IMPAIRED
OR INVALIDATED THEREBY, AND THE PARTIES HERETO SHALL USE THEIR REASONABLE BEST
EFFORTS TO FIND AND EMPLOY AN ALTERNATIVE MEANS TO ACHIEVE THE SAME OR
SUBSTANTIALLY THE SAME RESULT AS THAT CONTEMPLATED BY SUCH TERM, PROVISION,
COVENANT OR RESTRICTION, IT BEING INTENDED THAT ALL OF THE RIGHTS AND PRIVILEGES
OF THE PARTIES SHALL BE ENFORCEABLE TO THE FULLEST EXTENT PERMITTED BY LAW.
(J)
ENTIRE AGREEMENT. THIS AGREEMENT IS INTENDED BY THE PARTIES AS A
FINAL EXPRESSION OF THEIR AGREEMENT AND IS INTENDED TO BE A COMPLETE AND
EXCLUSIVE STATEMENT OF THE AGREEMENT AND UNDERSTANDING OF THE PARTIES HERETO IN
RESPECT OF THE SUBJECT MATTER CONTAINED HEREIN AND THE REGISTRATION RIGHTS
GRANTED BY THE COMPANY WITH RESPECT TO THE REGISTRABLE SECURITIES. EXCEPT AS
PROVIDED IN THE PURCHASE AGREEMENT, THERE ARE NO RESTRICTIONS, PROMISES,
WARRANTIES OR