FACSIMILE AT THE FACSIMILE NUMBER SPECIFIED ON THE SIGNATURE PAGE ATTACHED
HERETO PRIOR TO 5:30 P.M. (NEW YORK CITY TIME) ON A TRADING DAY, (B) THE NEXT
TRADING DAY AFTER THE DATE OF TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS
DELIVERED VIA FACSIMILE AT THE FACSIMILE NUMBER SPECIFIED IN THIS SECTION ON A
DAY THAT IS NOT A TRADING DAY OR LATER THAN 5:30 P.M. (NEW YORK CITY TIME) ON
ANY TRADING DAY, OR (C) THE TRADING DAY FOLLOWING THE DATE OF MAILING, IF SENT
BY U.S. NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE. THE ADDRESSES FOR SUCH
NOTICES AND COMMUNICATIONS ARE THOSE SET FORTH ON THE SIGNATURE PAGES HEREOF, OR
SUCH OTHER ADDRESS AS MAY BE DESIGNATED IN WRITING HEREAFTER, IN THE SAME
MANNER, BY SUCH PERSON.
24
5.5
AMENDMENTS; WAIVERS.
NO PROVISION OF THIS
AGREEMENT MAY BE WAIVED OR AMENDED EXCEPT IN A WRITTEN INSTRUMENT SIGNED, IN THE
CASE OF AN AMENDMENT, BY THE COMPANY AND EACH OF THE PURCHASERS OR, IN THE CASE
OF A WAIVER, BY THE PARTY AGAINST WHOM ENFORCEMENT OF ANY SUCH WAIVER IS
SOUGHT.
NO WAIVER OF ANY DEFAULT WITH RESPECT TO ANY PROVISION, CONDITION OR
REQUIREMENT OF THIS AGREEMENT SHALL BE DEEMED TO BE A CONTINUING WAIVER IN THE
FUTURE OR A WAIVER OF ANY SUBSEQUENT DEFAULT OR A WAIVER OF ANY OTHER PROVISION,
CONDITION OR REQUIREMENT HEREOF, NOR SHALL ANY DELAY OR OMISSION OF EITHER PARTY
TO EXERCISE ANY RIGHT HEREUNDER IN ANY MANNER IMPAIR THE EXERCISE OF ANY SUCH
RIGHT.
5.6
CONSTRUCTION.
THE HEADINGS HEREIN ARE FOR
CONVENIENCE ONLY, DO NOT CONSTITUTE A PART OF THIS AGREEMENT AND SHALL NOT BE
DEEMED TO LIMIT OR AFFECT ANY OF THE PROVISIONS HEREOF.
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.
5.7
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR
SUCCESSORS AND PERMITTED ASSIGNS.
THE COMPANY MAY NOT ASSIGN THIS AGREEMENT OR
ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE
PURCHASERS; PROVIDED, HOWEVER THAT NO SUCH CONSENT SHALL BE REQUIRED IN
CONNECTION WITH:
(A) A CONSOLIDATION OR MERGER OF THE COMPANY WITH OR INTO
ANOTHER CORPORATION OR OTHER ENTITY OR A SALE, TRANSFER OR OTHER DISPOSITION OF
ALL OR SUBSTANTIALLY ALL THE COMPANY'S PROPERTY, ASSETS OR BUSINESS TO ANOTHER
CORPORATION OR OTHER ENTITY; OR (B) A REORGANIZATION OR OTHER TRANSACTION THE
PRIMARY PURPOSE OF WHICH IS TO CHANGE THE JURISDICTION OF ORGANIZATION AND/OR
CORPORATE FORM OF THE COMPANY, PROVIDED THAT SUCH MERGER, REORGANIZATION OR
OTHER TRANSACTION DOES NOT HAVE AN ADVERSE TAX IMPACT UPON THE PURCHASERS WITH
RESPECT TO THEIR PURCHASE OR SALE OF THE SECURITIES.
ANY PURCHASER MAY ASSIGN
ITS RIGHTS UNDER THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT TO ANY
PERSON TO WHOM SUCH PURCHASER ASSIGNS OR TRANSFERS ANY SECURITIES.
5.8
NO THIRD-PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE