service shall be rebuttable evidence of personal
service, receipt by facsimile or deposit with a nationally recognized overnight
delivery service in accordance with clause (i), (ii) or (iii) above,
respectively.
40
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 NOTES.
THE COMPANY SHALL NOT ASSIGN THIS
AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER WITHOUT THE PRIOR WRITTEN
CONSENT OF THE HOLDERS OF AT LEAST A MAJORITY OF THE AGGREGATE PRINCIPAL OF THE
NOTES THEN OUTSTANDING, INCLUDING BY MERGER OR CONSOLIDATION, EXCEPT PURSUANT TO
A CHANGE OF CONTROL (AS DEFINED IN SECTION 4(B) OF THE NOTES) WITH RESPECT TO
WHICH THE COMPANY IS IN COMPLIANCE WITH SECTION 4(L) OF THIS AGREEMENT,
SECTION 4 OF THE NOTES AND SECTION 9 OF THE WARRANTS.
A PURCHASER MAY ASSIGN
SOME OR ALL OF ITS RIGHTS HEREUNDER WITHOUT THE CONSENT OF THE COMPANY;
PROVIDED, HOWEVER, THAT ANY SUCH ASSIGNMENT SHALL NOT RELEASE SUCH PURCHASER
FROM ITS OBLIGATIONS HEREUNDER UNLESS SUCH OBLIGATIONS ARE ASSUMED BY SUCH
ASSIGNEE AND THE COMPANY HAS CONSENTED TO SUCH ASSIGNMENT AND ASSUMPTION, WHICH
CONSENT SHALL NOT BE UNREASONABLY WITHHELD.
NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN THE TRANSACTION DOCUMENTS, THE PURCHASERS SHALL BE
ENTITLED TO PLEDGE THE SECURITIES IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT
OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
H.
NO THIRD-PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS AND, TO THE EXTENT PROVIDED IN SECTION 8 HEREOF, EACH INDEMNITEE, 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 10(K), THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY AND THE
PURCHASERS CONTAINED IN SECTIONS 2 AND 3, THE AGREEMENTS AND COVENANTS SET FORTH
IN SECTIONS 4, 5 AND 10, AND THE INDEMNIFICATION PROVISIONS SET FORTH IN
SECTION 8, SHALL SURVIVE THE CLOSING.
EACH PURCHASER 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, CERTIFICATES, INSTRUMENTS AND DOCUMENTS,
AS THE OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND
ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
K.
TERMINATION.
IN THE EVENT THAT THE CLOSING SHALL NOT HAVE
OCCURRED WITH RESPECT TO A PURCHASER ON OR BEFORE THE FIFTH (5TH) BUSINESS DAY
FOLLOWING THE DATE OF THIS AGREEMENT DUE TO THE COMPANY'S OR SUCH PURCHASER'S
FAILURE TO SATISFY THE CONDITIONS SET FORTH IN SECTIONS 6(A) AND 7(A) ABOVE (AND
THE NON-BREACHING PARTY'S FAILURE TO WAIVE SUCH UNSATISFIED CONDITION(S)), THE
NON-BREACHING PARTY SHALL HAVE THE OPTION TO TERMINATE THIS AGREEMENT WITH
RESPECT TO SUCH BREACHING PARTY AT THE CLOSE OF