Esq.
If to the Transfer Agent:
Equiserve
150 Royall Street
Canton, Massachusetts
Telephone:
(781) 575-2394
Facsimile:
(781) 575-2149
Attention:
Norris Richardson
If to a Buyer, to its address and facsimile number set forth on the Schedule of
Buyers, with copies to such Buyer's representatives as set forth on the Schedule
of Buyers, or to such other address and/or facsimile number and/or to the
attention of such other Person as the recipient party has specified by written
notice given to each other party five (5) days prior to the effectiveness of
such change.
Written confirmation of receipt (A) given by the recipient of such
notice, consent, waiver or other communication, (B) mechanically or
electronically generated by the sender's facsimile machine containing the time,
date, recipient facsimile number and an image of the first page of such
transmission or (C) provided by an overnight courier service shall be rebuttable
evidence of personal service, receipt by facsimile or receipt from an overnight
courier service in accordance with clause (i), (ii) or (iii) above,
respectively.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT
SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND ASSIGNS, INCLUDING ANY PURCHASERS OF THE PREFERRED
SHARES OR THE WARRANTS.
THE COMPANY SHALL NOT ASSIGN THIS AGREEMENT OR ANY
RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN CONSENT OF THE HOLDERS
OF A MAJORITY OR MORE OF THE PREFERRED SHARES THEN OUTSTANDING, INCLUDING BY
MERGER OR CONSOLIDATION, EXCEPT PURSUANT TO A CHANGE OF CONTROL (AS DEFINED IN
SECTION 4(A) OF THE CERTIFICATE OF DESIGNATIONS) WITH RESPECT TO WHICH THE
COMPANY IS IN COMPLIANCE WITH SUCH SECTION AND SECTION 4(B) OF THE WARRANTS.
A
BUYER MAY ASSIGN SOME OR ALL OF ITS RIGHTS HEREUNDER IN CONNECTION WITH A
TRANSFER OF SUCH BUYER'S SECURITIES TO ANY AFFILIATE OR LENDER WITHOUT THE
24
CONSENT OF THE COMPANY; PROVIDED THAT SUCH ASSIGNMENT IS IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS AND THIS AGREEMENT, AND UPON CONSUMMATION OF A
PERMITTED ASSIGNMENT AND THE WRITTEN AGREEMENT OF SUCH ASSIGNEE (IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE COMPANY) TO THE TERMS AND CONDITIONS OF
THIS AGREEMENT, SUCH ASSIGNEE SHALL BE DEEMED TO BE A BUYER HEREUNDER WITH
RESPECT TO SUCH ASSIGNED RIGHTS.
(H)
NO THIRD PARTY BENEFICIARIES.
THIS
AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
PERMITTED SUCCESSORS AND ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY
PROVISION HEREOF BE ENFORCED BY, ANY OTHER PERSON.
(I)
SURVIVAL.
UNLESS THIS AGREEMENT IS
TERMINATED UNDER SECTION 8, THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE BUYERS CONTAINED IN SECTIONS 2 AND 3, THE AGREEMENTS AND COVENANTS SET
FORTH IN SECTIONS 4, 5 AND 9 SHALL SURVIVE THE CLOSING.
EACH BUYER SHALL BE
RESPONSIBLE ONLY FOR ITS OWN REPRESENTATIONS, WARRANTIES, AGREEMENTS AND
COVENANTS HEREUNDER.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO
AND PERFORM, OR CAUSE TO BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND
THINGS, AND SHALL EXECUTE AND DELIVER ALL SUCH OTHER AGREEMENTS,