(within the meaning of Section 11(f) of the
Securities Act) shall be entitled to contribution from any Person who was not
guilty of such fraudulent misrepresentation.
10
The indemnity and contribution agreements contained in this Section are in
addition to any liability that the Indemnifying Parties may have to the
Indemnified Parties.
6.
MISCELLANEOUS
(A)
REMEDIES.
IN THE EVENT OF A BREACH BY THE COMPANY OR BY A HOLDER OF ANY OF
THEIR OBLIGATIONS UNDER THIS AGREEMENT, EACH HOLDER OR THE COMPANY, AS THE CASE
MAY BE, IN ADDITION TO BEING ENTITLED TO EXERCISE ALL RIGHTS GRANTED BY LAW AND
UNDER THIS AGREEMENT, INCLUDING RECOVERY OF DAMAGES, WILL BE ENTITLED TO
SPECIFIC PERFORMANCE OF ITS RIGHTS UNDER THIS AGREEMENT.
THE COMPANY AND EACH
HOLDER AGREE THAT MONETARY DAMAGES WOULD NOT PROVIDE ADEQUATE COMPENSATION FOR
ANY LOSSES INCURRED BY REASON OF A BREACH BY IT OF ANY OF THE PROVISIONS OF THIS
AGREEMENT AND HEREBY FURTHER AGREES THAT, IN THE EVENT OF ANY ACTION FOR
SPECIFIC PERFORMANCE IN RESPECT OF SUCH BREACH, IT SHALL WAIVE THE DEFENSE THAT
A REMEDY AT LAW WOULD BE ADEQUATE.
(B)
AMENDMENTS AND WAIVERS.
THE PROVISIONS OF THIS AGREEMENT, INCLUDING THE
PROVISIONS OF THIS SENTENCE, MAY NOT BE AMENDED, MODIFIED OR SUPPLEMENTED, AND
WAIVERS OR CONSENTS TO DEPARTURES FROM THE PROVISIONS HEREOF MAY NOT BE GIVEN,
UNLESS THE SAME SHALL BE IN WRITING AND SIGNED BY THE COMPANY AND THE HOLDERS OF
AT LEAST A MAJORITY OF THE THEN OUTSTANDING REGISTRABLE SECURITIES.
NOTWITHSTANDING THE FOREGOING, A WAIVER OR CONSENT TO DEPART FROM THE PROVISIONS
HEREOF WITH RESPECT TO A MATTER THAT RELATES EXCLUSIVELY TO THE RIGHTS OF
HOLDERS AND THAT DOES NOT DIRECTLY OR INDIRECTLY AFFECT THE RIGHTS OF OTHER
HOLDERS MAY BE GIVEN BY HOLDERS OF AT LEAST A MAJORITY OF THE REGISTRABLE
SECURITIES TO WHICH SUCH WAIVER OR CONSENT RELATES; PROVIDED, HOWEVER, THAT THE
PROVISIONS OF THIS SENTENCE MAY NOT BE AMENDED, MODIFIED, OR SUPPLEMENTED EXCEPT
IN ACCORDANCE WITH THE PROVISIONS OF THE IMMEDIATELY PRECEDING SENTENCE.
(C)
NO INCONSISTENT AGREEMENTS.
NEITHER THE COMPANY NOR ANY OF ITS
SUBSIDIARIES HAS ENTERED, AS OF THE DATE HEREOF, NOR SHALL THE COMPANY OR ANY OF
ITS SUBSIDIARIES, ON OR AFTER THE DATE OF THIS AGREEMENT, ENTER INTO ANY
AGREEMENT WITH RESPECT TO ITS SECURITIES THAT WOULD HAVE THE EFFECT OF IMPAIRING
THE RIGHTS GRANTED TO THE HOLDERS IN THIS AGREEMENT OR OTHERWISE CONFLICTS WITH
THE PROVISIONS HEREOF.
EXCEPT AS AND TO THE EXTENT SPECIFIED IN THE APPLICABLE
SCHEDULE TO THE PURCHASE AGREEMENT, NEITHER THE COMPANY NOR ANY SUBSIDIARY HAS
PREVIOUSLY ENTERED INTO ANY AGREEMENT GRANTING ANY REGISTRATION RIGHTS WITH
RESPECT TO ANY OF ITS SECURITIES TO ANY PERSON THAT HAVE NOT BEEN SATISFIED IN
FULL.
(D)
NO PIGGYBACK ON REGISTRATIONS.
EXCEPT AS AND TO THE EXTENT SPECIFIED IN
SCHEDULE 3.1(W) TO THE PURCHASE AGREEMENT, NEITHER THE COMPANY NOR ANY OF ITS
SECURITY HOLDERS (OTHER THAN THE HOLDERS IN SUCH CAPACITY PURSUANT HERETO) MAY
INCLUDE SECURITIES OF THE COMPANY IN THE REGISTRATION STATEMENT OTHER THAN THE
REGISTRABLE