THE HOLDERS OF A
MAJORITY OF THE UNDERLYING COMMON STOCK.
8.10
CONFIDENTIALITY.
EACH PURCHASER AGREES THAT SUCH PURCHASER WILL
KEEP CONFIDENTIAL AND WILL NOT DISCLOSE, DIVULGE OR USE FOR ANY PURPOSE, OTHER
THAN TO MONITOR ITS INVESTMENT IN THE COMPANY, ANY CONFIDENTIAL INFORMATION
OBTAINED FROM ANY MEMBER OF THE COMPANY GROUP PURSUANT TO THE TERMS OF THIS
AGREEMENT, UNLESS SUCH CONFIDENTIAL INFORMATION (I) IS KNOWN OR BECOMES KNOWN TO
THE PUBLIC IN GENERAL (OTHER THAN AS A RESULT OF A BREACH OF THIS SECTION 8.10
BY THE PURCHASER), (II) IS OR HAS BEEN INDEPENDENTLY DEVELOPED OR CONCEIVED BY
THE PURCHASER WITHOUT USE OF THE COMPANY'S CONFIDENTIAL INFORMATION OR (III) IS
OR HAS BEEN MADE KNOWN OR DISCLOSED TO THE PURCHASER BY A THIRD PARTY WITHOUT A
BREACH OF ANY OBLIGATION OF CONFIDENTIALITY SUCH THIRD PARTY MAY HAVE TO THE
COMPANY; PROVIDED, HOWEVER, THAT A PURCHASER MAY DISCLOSE CONFIDENTIAL
INFORMATION TO ITS LIMITED PARTNERS AND ADVISORY BOARD, AND ATTORNEYS,
ACCOUNTANTS, CONSULTANTS, AND OTHER PROFESSIONALS TO THE EXTENT NECESSARY TO
OBTAIN THEIR SERVICES IN CONNECTION WITH MONITORING ITS INVESTMENT IN THE
COMPANY, OR AS MAY OTHERWISE BE REQUIRED BY LAW.
ARTICLE IX
INDEMNIFICATION
9.1
SURVIVAL AND INDEMNIFICATION.
THE REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS AND THE COMPANY CONTAINED HEREIN SHALL SURVIVE FOR A PERIOD OF
EIGHTEEN MONTHS FOLLOWING INITIAL CLOSING (THE "SURVIVAL PERIOD").
IN
CONSIDERATION OF THE PURCHASERS' EXECUTION AND DELIVERY OF THIS AGREEMENT AND
ACQUIRING THE SERIES D SHARES AND WARRANTS HEREUNDER AND IN ADDITION TO ALL OF
THE COMPANY'S OTHER OBLIGATIONS UNDER THIS AGREEMENT, THE COMPANY SHALL, AND
SHALL CAUSE THE COMPANY GROUP TO, DEFEND, PROTECT, INDEMNIFY AND HOLD HARMLESS
THE PURCHASERS AND ALL OF THEIR AFFILIATES, OFFICERS, MANAGERS, ADVISORS,
DIRECTORS, EMPLOYEES AND AGENTS (INCLUDING THOSE RETAINED IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT) (COLLECTIVELY, THE "INDEMNITEES")
FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES, COSTS, PENALTIES, FEES,
LIABILITIES, DAMAGES AND EXPENSES (INCLUDING COSTS OF SUIT AND ALL REASONABLE
ATTORNEYS' FEES AND EXPENSES) IN CONNECTION THEREWITH (IRRESPECTIVE OF WHETHER
ANY SUCH INDEMNITEE IS A PARTY TO THE ACTION FOR WHICH INDEMNIFICATION HEREUNDER
IS SOUGHT) OR OTHER LIABILITIES, LOSSES, OR DIMINUTION IN VALUE (THE
"INDEMNIFIED LIABILITIES"), INCURRED BY THE INDEMNITEES OR ANY OF THEM AS A
RESULT OF, OR ARISING OUT OF, OR RELATING TO (I) THE BREACH OF ANY
REPRESENTATION OR WARRANTY CONTAINED IN THIS AGREEMENT OR IN ANY RELATED
DOCUMENT, (II) THE BREACH OF ANY PROMISE, AGREEMENT OR COVENANT CONTAINED IN
THIS AGREEMENT OR IN ANY RELATED DOCUMENT, OR (III) THE EXECUTION, DELIVERY,
PERFORMANCE OR ENFORCEMENT OF THIS AGREEMENT AND ANY OTHER INSTRUMENT, DOCUMENT
OR AGREEMENT EXECUTED PURSUANT HERETO BY ANY OF THE INDEMNITEES.
THE COMPANY
SHALL, AND SHALL CAUSE THE COMPANY GROUP TO, REIMBURSE THE INDEMNITEES FOR THE
INDEMNIFIED LIABILITIES AS SUCH INDEMNIFIED LIABILITIES ARE INCURRED.
TO THE
EXTENT THAT THE FOREGOING
42
UNDERTAKING BY THE COMPANY MAY BE UNENFORCEABLE FOR ANY REASON, THE COMPANY
SHALL, AND SHALL CAUSE THE COMPANY GROUP TO, MAKE THE MAXIMUM CONTRIBUTION TO
THE PAYMENT AND SATISFACTION OF EACH OF