AN EFFORT TO AGREE UPON A SUITABLE AND
EQUITABLE SUBSTITUTE PROVISION TO EFFECT THE ORIGINAL INTENT OF THE PARTIES.
B-3
(C)
COUNTERPARTS AND FACSIMILES.
FOR THE CONVENIENCE OF THE PARTIES
HERETO, THIS AGREEMENT MAY BE EXECUTED IN ANY NUMBER OF COUNTERPARTS, EACH OF
WHICH SHALL BE DEEMED TO BE AN ORIGINAL INSTRUMENT, AND ALL SUCH COUNTERPARTS
WILL TOGETHER CONSTITUTE THE SAME AGREEMENT.
EXECUTED SIGNATURE PAGES TO THIS
AGREEMENT MAY BE DELIVERED BY FACSIMILE AND SUCH FACSIMILES WILL BE DEEMED AS
SUFFICIENT AS IF ACTUAL SIGNATURE PAGES HAD BEEN DELIVERED.
(D)
SPECIFIC PERFORMANCE.
EACH STOCKHOLDER AGREES THAT IRREPARABLE
DAMAGE WOULD OCCUR IN THE EVENT THAT ANY OF THE PROVISIONS OF THIS AGREEMENT
WERE NOT PERFORMED IN ACCORDANCE WITH THEIR SPECIFIC TERMS. IT IS ACCORDINGLY
AGREED BY EACH STOCKHOLDER THAT EACH INVESTOR SHALL BE ENTITLED TO SEEK SPECIFIC
PERFORMANCE OF THE TERMS HEREOF, THIS BEING IN ADDITION TO ANY OTHER REMEDIES TO
WHICH IT IS ENTITLED AT LAW OR EQUITY.
(E)
AMENDMENTS; TERMINATION.
(I)
THIS AGREEMENT MAY NOT BE MODIFIED, AMENDED, ALTERED OR
SUPPLEMENTED, EXCEPT THAT THIS AGREEMENT MAY BE MODIFIED, AMENDED, ALTERED OR
SUPPLEMENTED, AS BETWEEN EITHER INVESTOR AND ANY PARTICULAR STOCKHOLDER, UPON
THE EXECUTION AND DELIVERY OF A WRITTEN AGREEMENT EXECUTED BY SUCH INVESTOR AND
SUCH STOCKHOLDER.
(II)
THE PROVISIONS OF THIS AGREEMENT INCLUDING THE PROXY GRANTED
PURSUANT TO SECTION 3 SHALL TERMINATE UPON THE EARLIEST TO OCCUR OF (A) RECEIPT
OF THE STOCKHOLDER APPROVAL AND (B) THE TERMINATION OF THE INVESTMENT AGREEMENT
IN ACCORDANCE WITH ITS TERMS.
(III)
THE PROXY GRANTED PURSUANT TO SECTION 3 SHALL ALSO AUTOMATICALLY
TERMINATE WITH RESPECT TO ANY STOCKHOLDER'S SUBJECT SHARES WHICH ARE SOLD,
TRANSFERRED, ASSIGNED OR OTHERWISE DISPOSED OF BY A STOCKHOLDER TO A THIRD
PARTY.
(F)
GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED
AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF COLORADO, WITHOUT
GIVING EFFECT TO CONFLICTS OF LAW PRINCIPLES OR OTHER PRINCIPLES THAT WOULD
REQUIRE THE APPLICATION OF ANY OTHER LAW.
(G)
SUCCESSORS AND ASSIGNS.
THE PROVISIONS OF THIS AGREEMENT SHALL BE
BINDING UPON AND INURE TO THE BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE
LEGAL SUCCESSORS (INCLUDING, IN THE CASE OF EACH STOCKHOLDER, ANY EXECUTORS,
ADMINISTRATORS, ESTATES, LEGAL REPRESENTATIVES AND HEIRS OF SUCH STOCKHOLDER)
AND PERMITTED ASSIGNS; PROVIDED THAT, EXCEPT AS OTHERWISE PROVIDED IN THIS
AGREEMENT, NO PARTY MAY ASSIGN, DELEGATE OR OTHERWISE TRANSFER ANY OF ITS RIGHTS
OR OBLIGATIONS UNDER THIS AGREEMENT.
(H)
NOTICES.
ALL NOTICES, COMMUNICATIONS AND DELIVERIES REQUIRED OR
PERMITTED BY THIS AGREEMENT SHALL BE MADE IN WRITING SIGNED BY THE PARTY MAKING
THE SAME, SHALL SPECIFY THE SECTION OF THIS AGREEMENT PURSUANT TO WHICH IT IS
GIVEN OR BEING MADE AND SHALL BE DEEMED GIVEN OR MADE (I) ON THE DATE DELIVERED
IF DELIVERED BY TELECOPY OR IN PERSON, (II) ON THE THIRD (3RD) BUSINESS DAY
AFTER IT IS MAILED IF MAILED BY REGISTERED OR CERTIFIED MAIL (RETURN RECEIPT
REQUESTED) (WITH POSTAGE AND OTHER FEES PREPAID) OR (III) ON THE DAY AFTER IT IS
DELIVERED, PREPAID,
B-4
TO