MODIFYING IN ANY MANNER THE RIGHTS AND OBLIGATIONS
HEREUNDER OF THE HOLDERS AND THE COMPANY; PROVIDED, HOWEVER, THAT NO SUCH WAIVER
OR SUPPLEMENTAL AGREEMENT MAY REDUCE THE AFORESAID PROPORTION OF REGISTRABLE
SECURITIES, THE HOLDERS OF WHICH ARE REQUIRED TO CONSENT TO ANY WAIVER OR
SUPPLEMENTAL AGREEMENT, WITHOUT THE CONSENT OF THE HOLDERS OF ALL THE
REGISTRABLE SECURITIES; AND PROVIDED FURTHER, AND NOTWITHSTANDING ANY PROVISION
HEREIN TO THE CONTRARY, THAT ANY SUCH WAIVER AMENDMENT OR SUPPLEMENT THAT
APPLIES ONLY TO A PARTICULAR REGISTRATION SHALL REQUIRE ONLY THE WRITTEN CONSENT
OF THE HOLDERS OF A MAJORITY OF THE REGISTRABLE SECURITIES INCLUDED IN SUCH
REGISTRATION. UPON THE EFFECTUATION OF EACH SUCH WAIVER, CONSENT OR AGREEMENT OF
AMENDMENT OR MODIFICATION, THE COMPANY WILL GIVE PROMPT WRITTEN NOTICE THEREOF
TO THE HOLDERS OF THE REGISTRABLE SECURITIES WHO HAVE NOT PREVIOUSLY CONSENTED
THERETO IN WRITING.
NEITHER THIS AGREEMENT NOR ANY PROVISION HEREOF MAY BE
CHANGED, WAIVED, DISCHARGED OR TERMINATED ORALLY OR BY COURSE OF DEALING, EXCEPT
BY A STATEMENT IN WRITING SIGNED BY THE PARTY AGAINST WHICH ENFORCEMENT OF THE
CHANGE, WAIVER, DISCHARGE OR TERMINATION IS SOUGHT, EXCEPT TO THE EXTENT
PROVIDED IN THIS SECTION 12.1.
SPECIFICALLY, BUT WITHOUT LIMITING THE
GENERALITY OF THE FOREGOING, THE FAILURE OF ANY INVESTOR AT ANY TIME OR TIMES TO
REQUIRE PERFORMANCE OF ANY PROVISION HEREOF BY THE COMPANY WILL NOT AFFECT THE
RIGHT OF ANY INVESTOR AT A LATER TIME TO ENFORCE THE SAME.
NO WAIVER BY ANY
PARTY OF THE BREACH OF ANY TERM OR PROVISION CONTAINED IN THIS AGREEMENT, IN ANY
ONE OR MORE INSTANCES, WILL BE DEEMED TO BE, OR CONSTRUED AS, A FURTHER OR
CONTINUING WAIVER OF ANY SUCH BREACH, OR A WAIVER OF THE BREACH OF ANY OTHER
TERM OR COVENANT CONTAINED IN THIS AGREEMENT.
12.2
EFFECT OF WAIVER OR AMENDMENT.
EACH INVESTOR
ACKNOWLEDGES THAT BY OPERATION OF SECTION 12.1 THE HOLDERS OF A MAJORITY OF THE
REGISTRABLE SECURITIES WILL, SUBJECT TO THE LIMITATIONS CONTAINED IN
SECTION 12.1, HAVE THE RIGHT AND POWER TO DIMINISH OR ELIMINATE CERTAIN RIGHTS
OF SUCH INVESTOR UNDER THIS AGREEMENT.
12.3
RIGHTS OF INVESTORS INTER SE.
EACH INVESTOR HAS
THE ABSOLUTE RIGHT TO EXERCISE OR REFRAIN FROM EXERCISING ANY RIGHT OR RIGHTS
WHICH SUCH INVESTOR MAY HAVE BY REASON OF THIS AGREEMENT OR ANY REGISTRABLE
SECURITY, INCLUDING, WITHOUT LIMITATION, THE RIGHT TO CONSENT TO THE WAIVER OF
ANY OBLIGATION OF THE COMPANY UNDER THIS AGREEMENT AND TO ENTER INTO AN
AGREEMENT WITH THE COMPANY FOR THE PURPOSE OF MODIFYING THIS AGREEMENT OR ANY
AGREEMENT EFFECTING ANY SUCH MODIFICATION, AND SUCH INVESTOR WILL NOT INCUR ANY
LIABILITY TO ANY OTHER INVESTOR OR INVESTORS WITH RESPECT TO EXERCISING OR
REFRAINING FROM EXERCISING ANY SUCH RIGHT OR RIGHTS.
12.4
NOTICES.
ALL NOTICES, REQUESTS, CONSENTS AND
OTHER COMMUNICATIONS REQUIRED OR PERMITTED HEREUNDER WILL BE IN WRITING AND WILL
BE DELIVERED, OR MAILED FIRST CLASS POSTAGE PREPAID, REGISTERED OR CERTIFIED
MAIL,
9
(A)
IF TO ANY INVESTOR, ADDRESSED TO SUCH
INVESTOR AT ITS ADDRESS SHOWN ON ANNEX A HERETO, OR AT SUCH OTHER