Common use of Entire Agreement; Effect on Prior Agreements; Amendments Clause in Contracts

Entire Agreement; Effect on Prior Agreements; Amendments. Except for the Transaction Documents (to the extent any such Transaction Document in effect prior to this Agreement is not amended by this Agreement), this Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Investor. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. The Company has not, directly or indirectly, made any agreements with any of the Buyers of Series A Warrants and Series B Warrants listed in the Existing Securities Purchase Agreement relating to the terms or conditions of the transactions contemplated by this Agreement on terms more favorable, in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable consideration.

Entire Agreement; Effect on Prior Agreements; Amendments. i. Except for the Transaction Documents Securities Purchase Agreement, the Registration Rights Agreement dated as of June 17, 2000 by and among the Company, the Investor and the Other Investors (to the extent any such Transaction Document "Series A Registration Rights Agreement"), the Series A Certificate of Designations, the Waiver Agreements, each executed as of January 3, 2001, between the Company and the Investor, and the Irrevocable Transfer Agent Instructions (as defined in effect prior to this Agreement is not amended by this the Securities Purchase Agreement), this Agreement supersedes Agreement, the Series B Certificate of Designations and each of the other Transaction Documents supersede all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. ii. No provision of this Agreement may be amended or waived other than by an instrument in writing signed by the Company and the holders of at least two-thirds (2/3) of the Common Shares and Conversion Shares (assuming conversion of all outstanding Preferred Shares without giving effect to any limitations on conversion) or, if prior to the Closing Date, the Investor. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Securities then outstanding. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. The Company has not, directly or indirectly, made any agreements with of any of the Buyers of Series A Warrants and Transaction Documents or the Series B Warrants listed in Certificate of Designations unless the Existing Securities Purchase Agreement relating same consideration also is offered to all of the parties to the terms Transaction Documents or conditions holders of Securities, as the transactions contemplated by this Agreement on terms more favorable, in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall case may be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable consideration.

Entire Agreement; Effect on Prior Agreements; Amendments. Except for the Transaction Documents (to the extent any such Transaction Document in effect prior to this Agreement is not amended by this Agreement), this Agreement supersedes all other prior oral or written agreements between among the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended or waived other than by an instrument in writing signed by the Company and the Investor. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Exchange Shares then outstanding. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents, the Series C-1 Certificate of Designations or the Series C-2 Certificate of Designations unless the same consideration also is offered to all of the parties to the Transaction Documents, holders of Series C-1 Shares, or holders of Series C-2 Shares, as the case may be. The Company has not, directly or indirectly, made any agreements with any of the Buyers of Series A Warrants and Series B Warrants listed in the Existing Securities Purchase Agreement Investors relating to the terms or conditions of the transactions contemplated by this Agreement on terms more favorable, the Transaction Documents except as set forth in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable considerationTransaction Documents.

Entire Agreement; Effect on Prior Agreements; Amendments. Except for the Transaction Documents in effect prior to this Agreement (to the extent any such Transaction Document in effect prior to this Agreement is not amended by this Agreement), this Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Investor. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Transaction Documents unless the same consideration also is offered to all of the parties to the Transaction Documents, holders of Notes or holders of the Warrants, as the case may be. The Company has not, directly or indirectly, made any agreements with any of the Buyers of Series A Warrants and Series B Warrants listed in the Existing Securities Purchase Agreement Investors relating to the terms or conditions of the transactions contemplated by the Transaction Documents, including through any agreement that is not identical to this Agreement, except as set forth in the Transaction Documents. In the event that the Company enters into any such agreement with more favorable terms than those set forth in this Agreement on terms more favorableand the documents contemplated hereby, in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive be granted the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable considerationbeneficial terms.

Entire Agreement; Effect on Prior Agreements; Amendments. Except for the Transaction Documents (to the extent any such Transaction Document in effect prior to this Agreement is not amended by this Agreement), this Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Investor. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. The Company has not, directly or indirectly, made any agreements with any of the Buyers of Series A Warrants Warrants, Series B Warrants, and Series B C Warrants listed in the Existing Securities Purchase Agreement relating to the terms or conditions of the transactions contemplated by this Agreement on terms more favorable, in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable consideration.

Entire Agreement; Effect on Prior Agreements; Amendments. Except for the Existing Transaction Documents (in each case, to the extent any such Existing Transaction Document in effect prior to this Agreement is not amended by this Agreement), this Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the InvestorInvestor and to the extent that Other Investors may be affected thereby, by the holders of a majority of the principal amount of the December Amendment Notes. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of any provision of any of the Existing Transaction Documents, the Amendments, the Security Documents, or any of the December Amendment Securities unless the same consideration also is offered to all of the holders of December Amendment Notes. The Company has not, directly or indirectly, made any agreements with any of the Buyers of Series A Warrants and Series B Warrants listed in the Existing Securities Purchase Agreement Investors relating to the terms or conditions of the transactions contemplated by this Agreement on terms more favorable, the Existing Transaction Documents except as set forth in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable considerationExisting Transaction Documents.

Entire Agreement; Effect on Prior Agreements; Amendments. i. Except for the Transaction Documents Securities Purchase Agreement, the Registration Rights Agreement dated as of June 17, 2000 by and among the Company, the Investors and the Other Investors (to the extent any such Transaction Document "Series A Registration Rights Agreement"), the Series A Certificate of Designations, the Waiver Agreements, each executed as of January 3, 2001, among the Company and each of the Investors, the First Redemption and Exchange Agreement, the Amended and Restated Registration Rights Agreement (as defined in effect prior to this the First Redemption and Exchange Agreement), the Series B Certificate of Designations, the Series C Certificate of Designations, the Series D Certificate of Designations and the Irrevocable Transfer Agent Instructions (as defined in each of the Securities Purchase Agreement is not amended by this and the First Redemption and Exchange Agreement), this Agreement supersedes Agreement, the Certificate of Designations and each of the other Transaction Documents supersede all other prior oral or written agreements between the each Investor, the Company, their affiliates and Persons persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the any Investor makes any representation, warranty, covenant or undertaking with respect to such matters. ii. No provision of this Agreement may be amended or waived other than by an instrument in writing signed by the Company and the Investorholders of at least two-thirds (2/3) of the Common Shares and Conversion Shares (assuming conversion of all outstanding Preferred Shares without giving effect to any limitations on conversion) or, if prior to the Closing Date, the Investors holding at least two-thirds (2/3) of the Series B Preferred Shares, Series C Preferred Shares and Series D Preferred Shares then outstanding and held by the Investors. No such amendment shall be effective to the extent that it applies to less than all of the holders of the Securities then outstanding. No consideration shall be offered or paid to any person to amend or consent to a waiver or modification of any provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. The Company has not, directly or indirectly, made any agreements with of any of the Buyers Transaction Documents or the Certificate of Series A Warrants and Series B Warrants listed in Designations unless the Existing Securities Purchase Agreement relating same consideration also is offered to all of the parties to the terms Transaction Documents or conditions holders of Securities, as the transactions contemplated by this Agreement on terms more favorable, in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall case may be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable consideration.

Entire Agreement; Effect on Prior Agreements; Amendments. Except for the Transaction Documents (to the extent any such Transaction Document in effect prior to this Agreement is not amended by this Agreement), this Agreement supersedes all other prior oral or written agreements between the Investor, the Company, their affiliates and Persons acting on their behalf with respect to the matters discussed herein, and this Agreement and the instruments referenced herein contain the entire understanding of the parties with respect to the matters covered herein and therein and, except as specifically set forth herein or therein, neither the Company nor the Investor makes any representation, warranty, covenant or undertaking with respect to such matters. No provision of this Agreement may be amended other than by an instrument in writing signed by the Company and the Investor. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought. The Company has not, directly or indirectly, made any agreements with any of the Buyers of Series A Warrants and Series B Warrants listed in the Existing Securities Purchase Agreement relating to the terms or conditions of the transactions contemplated by this Agreement on terms more favorable, in form or substance, than those offered in this Agreement. The Company hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof until the expiration of forty-five (45) days from the Closing, that none of the terms offered to any other holder of the Investor Warrants relating to the exchange, amendment or early exercise thereof (the “Future Warrant Agreement”) is or will be more favorable to such person than those provided to the Investor and this Agreement shall be, without any further action by Investor or Company, deemed amended and modified in an economically and legally equivalent manner such that the Investor shall receive the benefit of the more favorable terms contained in such Future Warrant Agreement and issued and/or paid any such more favorable consideration.