THE COMPANY SHALL NOT EXCLUDE ANY REGISTRABLE
SECURITIES UNLESS THE COMPANY HAS FIRST EXCLUDED ALL OUTSTANDING SECURITIES, THE
HOLDERS OF WHICH ARE NOT CONTRACTUALLY ENTITLED TO INCLUSION OF SUCH SECURITIES
IN SUCH REGISTRATION STATEMENT OR ARE NOT CONTRACTUALLY ENTITLED TO PRO RATA
INCLUSION WITH THE REGISTRABLE SECURITIES AND (II) AFTER GIVING EFFECT TO THE
IMMEDIATELY PRECEDING PROVISO, ANY SUCH EXCLUSION OF REGISTRABLE SECURITIES
SHALL BE MADE PRO RATA AMONG THE INVESTORS SEEKING TO INCLUDE REGISTRABLE
SECURITIES AND THE HOLDERS OF OTHER SECURITIES HAVING THE CONTRACTUAL RIGHT TO
INCLUSION OF THEIR SECURITIES IN SUCH REGISTRATION STATEMENT BY REASON OF DEMAND
REGISTRATION RIGHTS, IN PROPORTION TO THE NUMBER OF REGISTRABLE SECURITIES OR
OTHER SECURITIES, AS APPLICABLE, SOUGHT TO BE INCLUDED BY EACH SUCH INVESTOR OR
OTHER HOLDER.
ARTICLE VII
MISCELLANEOUS
7.1
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED BY THE COMPANY OR ANY INVESTOR, BY WRITTEN NOTICE TO THE OTHER
PARTIES, IF THE CLOSING HAS NOT BEEN CONSUMMATED BY THE THIRD BUSINESS DAY
FOLLOWING THE DATE OF THIS AGREEMENT; PROVIDED THAT NO SUCH TERMINATION WILL
AFFECT THE RIGHT OF ANY PARTY TO SUE FOR ANY BREACH BY THE OTHER PARTY (OR
PARTIES).
7.2
FEES AND EXPENSES.
EXCEPT AS EXPRESSLY SET
FORTH IN THE TRANSACTION DOCUMENTS TO THE CONTRARY, EACH PARTY SHALL PAY THE
FEES AND EXPENSES OF ITS ADVISERS, COUNSEL, ACCOUNTANTS AND OTHER EXPERTS, IF
ANY, AND ALL OTHER EXPENSES INCURRED BY SUCH PARTY INCIDENT TO THE NEGOTIATION,
31
PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT.
THE COMPANY
SHALL PAY ALL TRANSFER AGENT FEES, STAMP TAXES AND OTHER TAXES AND DUTIES LEVIED
IN CONNECTION WITH THE SALE AND ISSUANCE OF THEIR APPLICABLE SECURITIES.
7.3
ENTIRE AGREEMENT.
THE TRANSACTION
DOCUMENTS, TOGETHER WITH THE EXHIBITS AND SCHEDULES THERETO, CONTAIN THE ENTIRE
UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF AND
SUPERSEDE ALL PRIOR AGREEMENTS AND UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT
TO SUCH MATTERS, WHICH THE PARTIES ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH
DOCUMENTS, EXHIBITS AND SCHEDULES.
AT OR AFTER THE CLOSING, AND WITHOUT FURTHER
CONSIDERATION, THE COMPANY WILL EXECUTE AND DELIVER TO THE INVESTORS SUCH
FURTHER DOCUMENTS AS MAY BE REASONABLY REQUESTED IN ORDER TO GIVE PRACTICAL
EFFECT TO THE INTENTION OF THE PARTIES UNDER THE TRANSACTION DOCUMENTS.
7.4
NOTICES.
ANY AND ALL NOTICES OR OTHER
COMMUNICATIONS OR DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER
SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN AND EFFECTIVE ON THE EARLIEST OF
(A) THE DATE OF TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS DELIVERED VIA
FACSIMILE AT THE FACSIMILE NUMBER SPECIFIED IN THIS SECTION PRIOR TO 6:30 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 6:30 P.M. (NEW YORK CITY TIME) ON ANY TRADING DAY, (C) THE
TRADING DAY FOLLOWING THE DATE OF DEPOSIT WITH A NATIONALLY RECOGNIZED OVERNIGHT
COURIER