settlement of any pending
13
proceeding in respect of which Indemnitees are a party, unless such settlement
includes an unconditional release of such Indemnitees from all liabilities that
are the subject matter of such proceeding.
Subject to the foregoing, all fees
and expenses (including reasonable fees and expenses to the extent incurred in
connection with investigating or preparing to defend any such proceeding in a
manner inconsistent with this Article VIII) of the Indemnitees shall be paid to
the Indemnitees as incurred, within ten (10) business days of written notice
thereof to the Company, which notice shall be delivered no more frequently than
on a monthly basis; provided, that the Indemnitees shall reimburse the Company
for any and all such fees and expenses to the extent it is finally judicially
determined that such Indemnitees are not entitled to indemnification hereunder.
ARTICLE IX
DEFINITIONS
9.1
"CLOSING" MEANS THE CLOSING OF THE PURCHASE AND SALE OF THE
SECURITIES UNDER THIS AGREEMENT.
9.2
"CLOSING DATE" HAS THE MEANING SET FORTH IN SECTION 1.3.
9.3
"COMMON SHARES" HAS THE MEANING SET FORTH IN THE RECITALS.
9.4
"COMMON STOCK" MEANS THE COMMON STOCK, PAR VALUE $.001 PER SHARE,
OF THE COMPANY.
9.5
"COMPANY" MEANS SONUS PHARMACEUTICALS, INC.
9.6
"EXCHANGE ACT" MEANS THE SECURITIES EXCHANGE ACT OF 1934, AS
AMENDED.
9.7
"INDEMNIFIED LIABILITIES" HAS THE MEANING SET FORTH IN ARTICLE
VIII.
9.8
"INDEMNITEES" HAS THE MEANING SET FORTH IN ARTICLE VIII.
9.9
"INVESTOR" HAS THE MEANING SET FORTH IN THE PREAMBLE OF THIS
AGREEMENT.
9.10
"LICENSE AGREEMENT" HAS THE MEANING SET FORTH IN SECTION 3.22.
9.11
"MATERIAL ADVERSE EFFECT" MEANS A MATERIAL ADVERSE EFFECT ON (A)
THE BUSINESS, OPERATIONS, PROSPECTS, ASSETS OR FINANCIAL CONDITION OF THE
COMPANY OR (B) THE ABILITY OF THE COMPANY TO PERFORM ITS OBLIGATIONS PURSUANT TO
THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR UNDER THE AGREEMENTS OR
INSTRUMENTS TO BE ENTERED INTO OR FILED IN CONNECTION HEREWITH, INCLUDING THE
REGISTRATION RIGHTS AGREEMENT AND THE WARRANT.
9.12
"NASDAQ" MEANS THE NASDAQ NATIONAL MARKET SYSTEM.
9.13
"REGISTRATION RIGHTS AGREEMENT" MEANS THE REGISTRATION RIGHTS
AGREEMENT, DATED AS OF THE DATE OF THIS AGREEMENT AND AMONG THE PARTIES TO THIS
AGREEMENT, IN THE FORM ATTACHED HERETO AS EXHIBIT C.
9.14
"REGULATION D" MEANS REGULATION D AS PROMULGATED UNDER BY THE SEC
UNDER THE SECURITIES ACT.
14
9.15
"RULE 144" AND "RULE 144(K)" MEAN RULE 144 AND RULE 144(K),
RESPECTIVELY, PROMULGATED UNDER THE SECURITIES ACT, OR ANY SUCCESSOR RULE.
9.16
"SEC" MEANS THE UNITED STATES SECURITIES AND EXCHANGE COMMISSION.
9.17
"SEC DOCUMENTS" HAS THE MEANING SET FORTH IN SECTION 3.6.
9.18
"SECURITIES" HAS THE MEANING SET FORTH IN THE RECITALS.
9.19
"SECURITIES ACT" MEANS THE SECURITIES ACT OF 1933, AS AMENDED, AND
THE RULES AND REGULATIONS THEREUNDER, OR ANY SIMILAR SUCCESSOR STATUTE.
9.20
"WARRANT" AND "WARRANT SHARES" HAVE THE MEANINGS SET FORTH IN THE
RECITALS.
ARTICLE X
GOVERNING LAW; MISCELLANEOUS
10.1
GOVERNING LAW; JURISDICTION; JURY TRIAL WAIVER.
THIS AGREEMENT
WILL BE GOVERNED BY AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW