Exhibit 10.1
SECURITIES PURCHASE AGREEMENT
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THIS SECURITIES PURCHASE AGREEMENT ("Agreement") is made as of the 6th
day of November, 2001, by and among MEMRY CORPORATION, a Delaware corporation
(the "Company"), and the investors severally and not jointly listed on Schedule
A hereto, each of which is referred to herein as an "Investor".
THE PARTIES HEREBY AGREE AS FOLLOWS:
1. Purchase and Sale of Securities; Purchase Price Allocation.
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1.1. (a) Sale and Issuance of Securities. Subject to the
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terms and conditions of this Agreement, including without limitation Sections
1.2 and 4 hereof, on the Closing Date (defined below), each Investor agrees,
severally and not jointly, to purchase and the Company agrees to sell and issue
to each Investor for the purchase price set forth opposite such Investor's name
on Schedule A hereto (1) that number of shares of the Company's common stock,
par value $0.01 per share (the "Common Stock"), set forth opposite such
Investor's name on Schedule A hereto and (2) a Warrant of the Company in the
form of Exhibit A hereto (a "Warrant") for a number of shares of Common Stock
equal to one half that number of shares of Common Stock purchased by such
Investor pursuant to this Section 1.1 (the "Closing"). Each unit, consisting of
two shares of Common Stock and a warrant to purchase one share of Common Stock,
shall have a purchase price of $2.00. The shares of the Common Stock purchased
pursuant to this Section 1.1 hereinafter are referred to as the "Shares" and the
Shares, the Warrants and any Converted Shares (as defined below) hereinafter
collectively are referred to as the "Securities," and the purchase price paid by
each Investor at the Closing pursuant to this Section 1.1 hereinafter is
referred to as the "Purchase Price." Any shares of Common Stock issued by the
Company to an Investor upon such Investor's exercise of a Warrant thereafter
shall be referred to throughout this Agreement as "Converted Shares."
(b) Purchase Price Allocation. For all purposes
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(including tax and accounting purposes), the Company and each Investor agrees to
allocate the Purchase Price 82% to the Common Stock being purchased by the
Investor and 18% to the Warrants.
1.2. Closing.
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(a) The Closing shall take place at the offices of
▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, Stamford, Connecticut, commencing at 9:00 a.m. Eastern
standard time on November 6, 2001 or at such other time and place on such other
date as the parties shall agree to (the "Closing Date").
(b) At the Closing the Company shall deliver to each
Investor (1) a certificate representing the Shares and (2) a certificate
representing the Warrant that such Investor is purchasing against payment of the
Purchase Price therefor by check or wire transfer.
2. Representations of the Company.
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2.1. Organization, Good Standing and Qualification. The
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Company is a corporation duly organized, validly existing and in good standing
under the laws of the State of Delaware and has all requisite corporate power
and authority to carry on its business as now conducted and as proposed to be
conducted. The Company is duly qualified to transact business and is in good
standing in each jurisdiction in which the failure to so qualify would have a
material adverse effect on its business or properties.
2.2. Authorization. All corporate action on the part of the
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Company, its officers, directors and stockholders necessary for the
authorization, execution and delivery of this Agreement and the Warrants, the
performance of all obligations of the Company hereunder and thereunder, and the
authorization, issuance (or reservation for issuance), sale and delivery of the
Securities being sold hereunder, has been taken or will be taken prior to the
Closing, and this Agreement and the Warrants constitute valid and legally
binding obligations of the Company, enforceable in accordance with their
respective terms. Sufficient authorized but unissued shares of Common Stock have
been reserved by appropriate corporate action in connection with the prospective
issuance of the Converted Shares at the initial exercise price.
2.3. Valid Issuance of the Securities. The Securities that are
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being purchased by the Investors hereunder, when issued, sold and delivered in
accordance with the terms of this Agreement for the consideration expressed
herein, will be duly and validly issued, fully paid and nonassessable, and will
be free of restrictions on transfer other than restrictions on transfer under
this Agreement, the terms of the Warrants and under applicable state and federal
securities laws. The Converted Shares have been duly and validly reserved for
issuance and, upon issuance in accordance with the terms of the Warrants, will
be duly and validly issued, fully paid and nonassessable and will be free of
restrictions on transfer other than restrictions on transfer under this
Agreement.
2.4. Offering. Subject in part to the truth and accuracy of
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each Investor's representations set forth in Section 3 of this Agreement, the
offer, sale and issuance of the Securities as contemplated by this Agreement are
exempt from the registration requirements of any applicable state and federal
securities laws, and neither the Company nor any authorized agent acting on its
behalf will take any action hereafter that would cause the loss of such
exemption.
3. Representations and Warranties of the Investors. Each of the
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Investors hereby severally represents and warrants to the Company and
acknowledges and intends that the Company rely thereon, as follows:
3.1. Investment. Such Investor is acquiring the Securities for
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his, her or its own account for investment and not with a view to, or for sale
in connection with, any distribution thereof, nor with any present intention of
distributing or selling the same; and, except as contemplated by this Agreement,
such Investor has no present or contemplated agreement, undertaking,
arrangement, obligation, indebtedness or commitment providing for the
disposition thereof. Such Investor is an "accredited investor" as defined in
Rule 501(a) under the Act. Such Investor understands that the Securities have
not been, and will not be, registered under the Act by reason of a specific
exemption from the registration provisions of the Act, the availability of which
depends upon, among other things, the bona fide nature of the investment intent
and the accuracy of such Investor 's representations as expressed herein.
3.2. Authority. Such Investor has full power and
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authority to enter into and to perform this Agreement in accordance with its
terms. Any Investor which is a corporation, partnership or trust represents that
it has not been organized, reorganized or recapitalized specifically for the
purpose of investing in the Company.
3.3. Experience. Such Investor has reviewed the
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representations concerning the
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Company contained in this Agreement carefully and has made detailed inquiry
concerning the Company, its business and its personnel; the officers of the
Company have made available to such Investor any and all written information
which he, she or it has requested and have answered to such Investor's
satisfaction all inquiries made by such Investor; and such Investor has
sufficient knowledge and experience in finance and business that he, she or it
is capable of evaluating the risks and merits of his, her or its investment in
the Company and such Investor financially is able to bear the risks thereof.
3.4. Legend. Such Investor understands that the certificates
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evidencing the Shares and the Warrants will bear a legend stating in substance
the foregoing and such Investor agrees to the foregoing:
THE SALE AND ISSUANCE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE
HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"), OR UNDER THE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION. THESE SECURITIES HAVE BEEN ACQUIRED FOR INVESTMENT AND
NOT WITH A VIEW TO, OR IN CONNECTION WITH, THE DISTRIBUTION THEREOF.
THESE SECURITIES MAY NOT BE OFFERED, SOLD, PLEDGED, OR TRANSFERRED
UNLESS (I) A REGISTRATION STATEMENT UNDER THE ACT IS IN EFFECT AS TO
THESE SECURITIES AND SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN
COMPLIANCE WITH APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER
JURISDICTION OR (II) THERE IS AN OPINION OF COUNSEL OR OTHER EVIDENCE,
SATISFACTORY TO THE COMPANY, THAT AN EXEMPTION THEREFROM IS AVAILABLE
AND THAT SUCH OFFER, SALE, PLEDGE, OR TRANSFER IS IN COMPLIANCE WITH
APPLICABLE SECURITIES LAW OF ANY STATE OR OTHER JURISDICTION.
4. Conditions to Closing. The obligations of each of the
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Investors and the Company under Section 1.2 of this Agreement are subject to
each of the Investor's having paid to the Company such Investor's aggregate
Purchase Price as set forth opposite such Investor's name on Exhibit A attached
hereto.
5. Company Covenant and Investor Agreement. The Company hereby
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covenants (A) that each Investor shall have the right to have included in any
registration statement prepared and filed pursuant to Section 4 of that certain
Securities Purchase Agreement, dated November 14, 2000, among the Company and
the investors listed therein (the terms of such Section 4 are set forth on Annex
I hereto), its Registrable Securities (as defined in Annex I), and (B) that any
such registration statement shall have been declared effective no later than
December 31, 2001. Furthermore, each Investor hereby acknowledges and agrees
that it shall be bound by the terms set forth in Annex I, including, without
limitation, the information delivery and expenses covenants and the
indemnification provisions therein.
6. Miscellaneous.
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6.1. Survival of Warranties. The warranties, representations
and covenants of the Company and the Investors contained in or made pursuant to
this Agreement shall survive the execution and delivery of this Agreement and
the closings and shall in no way be affected by any investigation of the subject
matter thereof made by or on behalf of the Investors or the Company.
6.2. Successors and Assigns. The terms and conditions of this
Agreement shall inure to the benefit of and be binding upon the respective
successors and assigns of the parties. Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the
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parties hereto or their respective successors and assigns any rights, remedies,
obligations, or liabilities under or by reason of this Agreement, except as
expressly provided in this Agreement.
6.3. Governing Law. This Agreement shall be governed by
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and construed under the laws of the State of Connecticut, as applied to
agreements among Connecticut residents entered into and to be performed entirely
within Connecticut.
6.4. Counterparts. This Agreement may be executed in two
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or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.
6.5. Titles and Subtitles. The titles and subtitles used
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in this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
6.6. Notices. Unless otherwise provided, any notice
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required or permitted under this Agreement shall be given in writing and shall
be deemed effectively given (i) upon personal delivery to the party to be
notified, (ii) 48 hours after deposit with the United States Post Office, by
registered or certified mail, postage prepaid and addressed to the party to be
notified at the address indicated for such party on the signature page hereof,
or at such other address as such party may designate by ten (10) days' advance
written notice to the other parties, (iii) upon transmission of a confirmed
telecopy to such party at a telecopier number furnished by such party for such
purpose, or (iv) upon delivery to such address by Federal Express or other
courier service.
6.7. Amendments and Waivers. Excluding Annex I, any term
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of this Agreement may be amended and the observance of any term of this
Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the holders of a majority of the outstanding Shares. Any amendment or waiver
effected in accordance with this paragraph shall be binding upon each holder of
any securities purchased under this Agreement at the time outstanding (including
securities into which such securities are convertible), each future holder of
all such securities, and the Company.
6.8. Severability. If one or more provisions of this
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Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement and the balance of the Agreement shall be
interpreted as if such provision were so excluded and shall be enforceable in
accordance with its terms.
6.9. Indemnification.
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(a) The Company, with respect to the
representations, warranties, covenants and agreements made by the Company herein
shall indemnify, defend and hold each Investor harmless against all liability,
loss or damage, together with all reasonable costs and expenses related thereto
(including legal and accounting fees and expenses), arising from the untruth,
inaccuracy or breach of any such representations, warranties, covenants or
agreements of the Company.
(b) Each Investor, with respect to the
representations, warranties, covenants and agreements made by such Investor
herein, shall indemnify, defend and hold the Company harmless against all
liability, loss or damage, together with all reasonable costs and expenses
related thereto (including legal and accounting fees and expenses), arising from
the untruth, inaccuracy or breach of any such representations, warranties,
covenants or agreements of such Investor.
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6.10. Remedies. In case any one or more of the covenants
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and/or agreements set forth in this Agreement shall have been breached by the
Company, each Investor may proceed to protect and enforce its or their rights
either by suit in equity and/or by action at law, including, but not limited to,
an action for damages as a result of any such breach and/or an action for
specific performance of any such covenant or agreement contained in this
Agreement. A party acting pursuant to this Section 6.10 shall be indemnified
against all liability, loss or damage, together with all reasonable costs and
expenses related thereto (including legal and accounting fees and expenses) in
accordance with Section 6.9.
6.11. Nouns and Pronouns. Whenever the context may require,
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any pronouns used herein shall include the corresponding masculine, feminine or
neuter forms, and the singular form of names and pronouns shall include the
plural and vice versa.
6.12. Information to be Provided by Investor. Each Investor
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agrees to provide to the Company such information as the Company reasonably may
request in order to make accurate and timely required filings and disclosures to
its stockholders and to federal, state and self-regulatory agencies.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.
MEMRY CORPORATION
▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇, Chief Executive Officer
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INVESTOR
_____________________________
Name:
Title:
Number of Shares and Warrants Purchased:____
Purchase Price Paid:________
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SCHEDULE A
Information as to Investor
No. of Shares of No. of Aggregate
Name and Address of Purchaser Common Stock Warrants Purchase Price
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Annex I
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1. Registration. The Company covenants and agrees as follows:
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1.1 Definitions. For purposes of this Section 1:
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(a) The terms "register", "registered", and
"registration" refer to a registration effected by preparing and filing a
registration statement or similar document in compliance with the Act, and the
declaration or ordering of effectiveness of such registration statement or
document;
(b) The term "Registrable Securities" means (1)
any Shares owned by an Investor, (2) any Converted Shares owned or acquirable by
an Investor, and (3) any Common Stock of the Company issued as (or issuable upon
the conversion or exercise of any warrant, right or other security which is
issued as) a dividend or other distribution with respect to, or in exchange for
or in replacement of, such Shares and/or Converted Shares, excluding in all
cases, however, any Registrable Securities sold by a person in a transaction in
which its rights under this Section 1 are not assigned;
(c) The number of shares of "Registrable
Securities then outstanding" shall be the number of shares of Common Stock
outstanding which are, and the number of shares of Common Stock issuable
pursuant to exercisable or convertible securities which are, Registrable
Securities;
(d) The term "Holder" means any person owning or
having the right to acquire Registrable Securities or any assignee thereof in
accordance with Section 1.8 hereof; and
(e) The term "Form S-3" means such form under
the Act as in effect on the date hereof or any registration form under the Act
subsequently adopted by the SEC which permits including or incorporation of
substantial information by reference to other documents filed by the Company
with the SEC.
1.2 Registration of the Sale of the Shares. The Company
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(i) shall file a registration statement on Form S-3 (the "Share Registration
Statement") for the registration under the Act of the sale by the Investors of
their Registrable Securities no later than March 31, 2001, and (ii) shall use
its best efforts to effect the registration under the Act of all such
Registrable Securities as promptly thereafter as possible. The Company shall
furnish to each Investor copies of all documents filed and correspondence with
the SEC relating to the Share Registration Statement, and such other information
as an Investor reasonably shall request.
1.3 Obligations of the Company. With respect to the Share
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Registration Statement or whenever required under this Section 1 to effect the
registration of any Registrable Securities, the Company, as expeditiously as
reasonably possible, shall:
(a) Prepare and file with the SEC a registration
statement with respect to the Registrable Securities and use its best efforts to
cause such registration statement to become effective;
(b) Prepare and file with the SEC such
amendments and supplements to such registration statement and the prospectus
used in connection with such registration statement
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as may be necessary to comply with the provisions of the Act with respect to the
disposition of the securities covered by such registration statement;
(c) Furnish to each Investor or, as applicable,
the Holders such numbers of copies of a prospectus, including a preliminary
prospectus, in conformity with the requirements of the Act, and such other
documents as an Investor or, as applicable, the Holders may reasonably request;
(d) Use its best efforts to register and qualify
the securities covered by such registration statement under such other
securities or Blue Sky laws of such jurisdictions as reasonably shall be
requested by each Investor or, as applicable, the Holders to effect such
registration statement or, as applicable, to enable the Holders to consummate
the disposition in such jurisdictions of such securities, provided that the
Company shall not be required in connection therewith or as a condition thereto
to qualify to do business or to file a general consent to service of process in
any such states or jurisdictions;
(e) Notify each Investor or, as applicable, each
Holder of Registrable Securities covered by such registration statement and each
underwriter thereof, if any, of the effectiveness of such registration statement
and, at any time when a prospectus relating thereto is required to be delivered
under the Act, of the happening of any event as a result of which the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state a material fact required to be
stated therein or necessary to make the statements made therein not misleading
in the light of the circumstances then existing, and at the request of each
Investor or, as applicable, any such Holder or underwriter promptly prepare and
furnish to each Investor or, as applicable, such Holder or underwriter, if any,
a reasonable number of copies of a prospectus supplemented or amended so that
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing; and
(f) Furnish, at the request of (i) an Investor
or (ii) as applicable, any Holder, on the date that the registration statement
with respect to such securities becomes effective, (A) an opinion, dated such
date, of the counsel representing the Company for the purposes of such
registration, in form and substance as is customarily given to the underwriters
in an underwritten public offering, addressed to the Investor or, as applicable,
underwriters, if any, and to the Holders and (B) a letter, dated such date, from
the independent public accountants of the Company, in form and substance as is
customarily given by independent public accountants to underwriters in an
underwritten public offering, addressed to the Investor and to the Holders;
provided, however, that an Investor or Holder only shall be entitled to receive
the letter described in clause (B) to the extent that they satisfy any
requirements of said accountants with respect to the receipt of such letter.
For purposes of Sections 1.2, 1.3(a) and 1.3(b), the period of
distribution of Registrable Securities shall be deemed to extend until the
earlier of the sale of all Registrable Securities covered thereby and the first
anniversary of the effective date thereof.
1.4 Obligations of Selling Holders.
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(a) It shall be a condition precedent to the
obligations of the Company to take any action pursuant to this Section 1 with
respect to the Registrable Securities of any selling Holder that such Holder
shall furnish to the Company in writing such information regarding itself, the
Registrable Securities held by it, and the intended method of disposition of
such securities as shall be required to effect the registration of such Holder's
Registrable Securities.
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(b) The Holders of Registrable Securities
included in a registration statement will not (until further notice) effect
sales thereof after receipt of telegraphic or written notice from the Company to
suspend sales to permit the Company to correct or update a registration
statement or prospectus.
1.5 Expenses of Registration. All expenses other than
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underwriting discounts and commissions incurred in connection with
registrations, filings, or qualifications pursuant to Section 1.2, including
(without limitation) all registration, filing and qualification fees, printers'
and accounting fees, fees and disbursement of counsel for the Company,
transportation expenses, mailing expenses, and the fees and disbursements of
counsel for the selling Holders shall be borne and paid by the Company.
1.6 Delay of Registration. No Holder shall have any right
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to obtain or seek an injunction restraining or otherwise delaying any such
registration as the result of any controversy that might arise with respect to
the interpretation or implementation of this Section 1.
1.7 Indemnification. With respect to the Share
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Registration Statement:
(a) To the extent permitted by law, the Company
will indemnify and hold harmless each Investor, any Holder, or any underwriter
(as defined in the Act) for such Holder, each person, if any, who controls such
Holder or underwriter within the meaning of the Act or the 1934 Act, and each
officer, director or agent of the Holder against any losses, claims, damages, or
liabilities (joint or several) to which they, or any of them, may become subject
under the Act, the 1934 Act or other federal or state law, insofar as such
losses, claims, damages, or liabilities (or actions in respect thereof) arise
out of or are based upon any of the following statements, omissions or
violations (collectively a "Violation"): (i) any untrue statement or alleged
untrue statement of a material fact contained in the relevant registration
statement, including any preliminary prospectus or final prospectus contained
therein or any amendments or supplements thereto, (ii) the omission or alleged
omission to state therein a material fact required to be stated therein, or
necessary to make the statements made therein not misleading, or (iii) any
violation or alleged violation by the Company of the Act, the 1934 Act, any
state securities law or any rule or regulation promulgated under the Act, the
1934 Act or any state securities law applicable to the Company in connection
with any such registration; and the Company will pay to each Investor or each
such Holder, underwriter, controlling person, officer, director or agent, as
incurred, any legal or other expenses reasonably incurred by them or any of them
in connection with investigating or defending any such loss, claim, damage,
liability, or action; provided, however, that the indemnity agreement contained
in this subsection 1.7(a) shall not apply to amounts paid in settlement of any
such loss, claim, damage, liability, or action if such settlement is effected
without the consent of the Company (which consent shall not be unreasonably
withheld), nor shall the Company be liable in any such case for any such loss,
claim, damage, liability, or action to the extent that it arises out of or is
based upon a Violation which occurs in reliance upon and in conformity with
written information furnished expressly for use in connection with such
registration by any such Holder, underwriter, controlling person, officer,
director or agent.
(b) To the extent permitted by law, each
Investor and any Holder will indemnify and hold harmless the Company, each of
its directors, each of its officers who has signed the registration statement,
each person, if any, who controls the Company within the meaning of the Act, any
underwriter, any other Holder selling securities in such registration statement
and any controlling person of any such underwriter or other Holder, against any
losses, claims, damages, or liabilities (joint or several) to which any of the
foregoing persons may become subject, under the Act, the 1934 Act or other
federal or state law, insofar as such losses, claims, damages or liabilities (or
actions in respect thereto) arise out of or are based upon any Violation, in
each case to the extent
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(and only to the extent) that such Violation occurs in reliance upon and in
conformity with written information furnished by each Investor or any Holder, as
applicable, expressly for use in connection with such registration; and such
Investor or any Holder, as applicable, will pay, as incurred, any legal or other
expenses reasonably incurred by any person intended to be indemnified pursuant
to this subsection 1.7(b) in connection with investigating or defending any such
loss, claim, damage, liability, or action; provided, however, that the indemnity
agreement contained in this subsection 1.7(b) shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or action if such
settlement is effected without the consent of such Investor or any Holder, as
applicable, which consent shall not be withheld unreasonably; and provided,
further, however, that the liability of each Investor or Holder, as applicable,
hereunder shall not in any event exceed the net proceeds received by such
Investor or Holder, as applicable, from the sale of Registrable Securities
covered by such registration statement.
(c) Promptly after receipt by an indemnified
party under this Section 1.7 of notice of the commencement of any action
(including any governmental action), such indemnified party, if a claim in
respect thereof is to be made against any indemnifying party under this Section
1, will deliver to the indemnifying party a written notice of the commencement
thereof and the indemnifying party shall have the right to participate in, and,
to the extent the indemnifying party so desires, jointly with any other
indemnifying party similarly noticed, to assume the defense thereof with counsel
mutually satisfactory to the parties; provided, however, that an indemnified
party shall have the right to retain its own counsel, with the fees and expenses
to be paid by the indemnifying party, if representation of such indemnified
party by the counsel retained by the indemnifying party would be inappropriate
due to actual or potential differing interests between such indemnified party
and any other party represented by such counsel in such proceeding. The failure
to deliver written notice to the indemnifying party within a reasonable time of
the commencement of any such action, if prejudicial to its ability to defend
such action, shall relieve such indemnifying party of any liability to the
indemnified party under this Section 1.7, but omission so to deliver written
notice to the indemnifying party will not relieve it of any liability that it
may have to any indemnified party otherwise than under this Section 1.7.
(d) The obligations of the Company, each
Investor and any Holders under this Section 1.7 shall survive the completion of
any offering of Registrable Securities in a registration statement under this
Section 1, and otherwise.
1.8 Assignment of Registration Rights. The rights to
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cause the Company to register Registrable Securities pursuant to Section 1.2
hereof may be assigned by a Holder of Registrable Securities to a transferee or
assignee of such securities so long as there is transferred or assigned to such
transferee or assignee, as the case may be, at least twenty five thousand shares
of Registrable Securities (appropriately adjusted for any subdivision or
combination) and provided that the Company, prior to or simultaneously with such
transfer, is furnished with written notice of the name and address of such
transferee or assignee and the securities with respect to which such
registration rights are being assigned; and provided, further, that such
assignment shall be effective only if immediately following such transfer the
further disposition of such securities by the transferee or assignee is
restricted under the Act.
1.9 Amendment of Registration Rights. Any provision of
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this Section 1 pertaining to Registrable Securities may be amended and the
observance thereof may be waived (either generally or in a particular instance
and either retroactively or prospectively) only with the written consent of the
Company and the holders of a majority of the Registrable Securities then
outstanding. Any amendment or waiver effected in accordance with this paragraph
shall be binding upon each holder of any securities purchase under this
Agreement at the time outstanding (including
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securities into which such securities are convertible), each future holder of
all such securities, and the Company.
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