Common use of Scope of Agreement; Amendment Clause in Contracts

Scope of Agreement; Amendment. This Agreement shall bind and inure to the benefit of the Company, its Affiliates and its successors and assigns and Participant and any successor or successors of Participant permitted by Paragraph 2 or Paragraph 5(f) above. Notwithstanding anything in this Agreement or the Plan to the contrary, the Company expressly reserves the right to amend this Agreement without Participant’s consent to the extent necessary or desirable to comply with Code Section 409A, and the regulations, notices and other guidance of general applicability issued thereunder. Notwithstanding anything herein in this Agreement or the Plan to the contrary, any provision of Paragraph 4 may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only by the written consent given by the Company and Investors holding sixty-six percent (66%) of the then outstanding Series B Preferred Stock, and no consent from the Participant shall be required unless such amendment or waiver creates material additional obligations for the Participant under this Agreement which are substantially different from any obligations imposed on holders of Common Stock under the Investors Stockholders Agreement (in which case, the consent of participants under restricted stock or option agreements who are bound by terms and conditions of similar tenor to this Agreement who hold more than fifty percent (50%) of the total of all restricted shares and option shares held by all such participants thereunder and hereunder shall be required for any such amendment or waiver which does create such material additional obligations).

Scope of Agreement; Amendment. This Agreement shall bind and inure to the benefit of the Company, its Affiliates and its successors and assigns and Participant and any successor or successors of Participant permitted by Paragraph 2 or Paragraph 5(f) 3 above. Notwithstanding anything in this Agreement or the Plan to the contrary, the Company expressly reserves the right to amend this Agreement without Participant’s consent to the extent necessary or desirable to comply with Code Section 409A, and the regulations, notices and other guidance of general applicability issued thereunder. Notwithstanding anything herein in this Agreement or the Plan to the contrary, any provision of Paragraph 4 3 may be amended and the observance thereof may be waived (either generally or in a particular instance and either retroactively or prospectively), only by the written consent given by the Company and Investors holding sixty-six percent (66%) of the then outstanding Series B Preferred Stock, and no consent from the Participant shall be required unless such amendment or waiver creates material additional obligations for the Participant under this Agreement which are substantially different from any obligations imposed on holders of Common Stock under the Investors Stockholders Agreement (in which case, the consent of participants under restricted stock or option agreements who are bound by terms and conditions of similar tenor to this Agreement who hold more than fifty percent (50%) of the total of all restricted shares and option shares held by all such participants thereunder and hereunder shall be required for any such amendment or waiver which does create such material additional obligations).