of common stock, par value
$0.001 per share.
"Stockholder's Subject Shares" shall mean, with respect to a particular
Stockholder, all shares of Company Common Stock beneficially owned by such
Stockholder as
B-1
of the date hereof and as set forth opposite such Stockholder's name on the
schedule attached hereto as Exhibit A and any and all such other shares of
Company Common Stock acquired or otherwise beneficially owned from time to time
by such Stockholder after the date of this Agreement.
2.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF STOCKHOLDER.
EACH
STOCKHOLDER HEREBY REPRESENTS AND WARRANTS TO EACH INVESTOR AS FOLLOWS:
(A)
TITLE.
SET FORTH OPPOSITE SUCH STOCKHOLDER'S NAME ON EXHIBIT A
HERETO IS A TRUE AND COMPLETE LIST OF ALL OF THE SHARES OF COMPANY COMMON STOCK
OF WHICH SUCH STOCKHOLDER IS THE RECORD OR BENEFICIAL OWNER AS OF THE DATE
HEREOF.
EXCEPT AS SET FORTH ON EXHIBIT A, AS OF THE DATE HEREOF, SUCH
STOCKHOLDER IS THE SOLE RECORD OR BENEFICIAL OWNER OF SUCH STOCKHOLDER'S SUBJECT
SHARES, AND SUCH STOCKHOLDER IS THE LAWFUL OWNER OF SUCH STOCKHOLDER'S SUBJECT
SHARES, FREE AND CLEAR OF ALL LIENS EXCEPT SUCH LIENS AS WOULD NOT REASONABLY BE
EXPECTED TO MATERIALLY IMPAIR SUCH STOCKHOLDER'S ABILITY TO PERFORM ITS
OBLIGATIONS HEREUNDER.
(B)
RIGHT TO VOTE.
EXCEPT AS SET FORTH ON EXHIBIT A, SUCH STOCKHOLDER
HAS, WITH RESPECT TO ALL SUCH STOCKHOLDER'S SUBJECT SHARES, SOLE VOTING POWER
AND SOLE POWER TO ISSUE INSTRUCTIONS WITH RESPECT TO THE MATTERS SET FORTH IN
SECTION 3, IN EACH CASE WITH NO LIMITATIONS, QUALIFICATIONS OR RESTRICTIONS ON
SUCH RIGHTS OTHER THAN PURSUANT TO THE TERMS OF THIS AGREEMENT.
(C)
AUTHORITY.
SUCH STOCKHOLDER HAS THE REQUISITE POWER AND AUTHORITY
TO EXECUTE AND DELIVER, AND TO PERFORM SUCH STOCKHOLDER'S OBLIGATIONS UNDER,
THIS AGREEMENT.
THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED
BY SUCH STOCKHOLDER AND CONSTITUTES A VALID AND BINDING AGREEMENT OF SUCH
STOCKHOLDER ENFORCEABLE AGAINST SUCH STOCKHOLDER IN ACCORDANCE WITH ITS TERMS,
SUBJECT TO APPLICABLE BANKRUPTCY, INSOLVENCY, FRAUDULENT CONVEYANCE,
REORGANIZATION, MORATORIUM AND SIMILAR LAWS AFFECTING CREDITORS' RIGHTS AND
REMEDIES GENERALLY, AND SUBJECT, AS TO ENFORCEABILITY, TO GENERAL PRINCIPLES OF
EQUITY, INCLUDING PRINCIPLES OF GOOD FAITH AND FAIR DEALING (REGARDLESS OF
WHETHER ENFORCEMENT IS SOUGHT IN A PROCEEDING AT LAW OR IN EQUITY).
(D)
CONFLICTING INSTRUMENTS.
NEITHER THE EXECUTION AND DELIVERY OF
THIS AGREEMENT NOR THE PERFORMANCE BY SUCH STOCKHOLDER OF SUCH STOCKHOLDER'S
AGREEMENTS AND OBLIGATIONS HEREUNDER WILL RESULT IN ANY BREACH OR VIOLATION OF,
OR BE IN CONFLICT WITH OR CONSTITUTE A DEFAULT UNDER, ANY TERM OF ANY CONTRACT,
AGREEMENT, VOTING AGREEMENT, STOCKHOLDERS' AGREEMENT, TRUST AGREEMENT, VOTING
TRUST, PROXY, POWER OF ATTORNEY, POOLING ARRANGEMENT, NOTE, MORTGAGE, INDENTURE,
INSTRUMENT, ARRANGEMENT OR OTHER OBLIGATION OR RESTRICTION OF ANY KIND TO WHICH
THE STOCKHOLDER IS A PARTY OR TO OR BY WHICH THE STOCKHOLDER OR THE
STOCKHOLDER'S SUBJECT SHARES ARE SUBJECT OR BOUND.
3.
GRANT OF PROXY.
(A)
EACH STOCKHOLDER HEREBY GRANTS TO, AND APPOINTS, THE INVESTORS,
SUCH STOCKHOLDER'S PROXY AND ATTORNEY-IN-FACT (WITH FULL POWER OF SUBSTITUTION),
FOR AND IN THE NAME,