ALL ACTIONS, INQUIRIES, PROCEEDINGS AND INVESTIGATIONS
IN RESPECT THEREOF (INCLUDING ANY PROCEEDING BY ANY GOVERNMENT SUBDIVISION AND
ANY CLAIM BY ANY FORMER OR CURRENT SECURITYHOLDER OF BUYER), WHETHER PENDING OR
THREATENED, TO WHICH ANY SUCH PARTY MAY BECOME SUBJECT, ARISING IN ANY MANNER
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREIN TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, REGARDLESS OF
WHETHER ANY OF SUCH PARTIES IS A PARTY HERETO, AND IMMEDIATELY UPON REQUEST
REIMBURSE SUCH PARTY FOR SUCH PARTY'S LEGAL AND OTHER EXPENSES AS THEY ARE
INCURRED IN CONNECTION WITH INVESTIGATING, PREPARING, DEFENDING, PAYING,
SETTLING OR COMPROMISING ANY SUCH ACTION, INQUIRY, PROCEEDING OR INVESTIGATION
(INCLUDING, WITHOUT LIMITATION, USUAL AND CUSTOMARY PER DIEM COMPENSATION FOR
ANY SUCH PARTY'S INVOLVEMENT IN DISCOVERY PROCEEDINGS OR TESTIMONY); PROVIDED
THAT BUYER AND THE INSIDERS SHALL NOT BE LIABLE FOR ANY SUCH LOSS, LIABILITY,
CLAIM, DAMAGE OR EXPENSE RESULTING FROM ACTIONS TAKEN BY SELLER IN BAD FAITH OR
AS A RESULT OF ITS GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
6
8.
TERMINATION OF PURCHASE OBLIGATION.
THE OBLIGATION OF SELLER AND
BUYER TO SELL AND PURCHASE, RESPECTIVELY, THE SHARES UNDER THIS AGREEMENT SHALL
BECOME NULL AND VOID AND OF NO FORCE AND EFFECT UPON THE EARLIER OF (I) THE
TERMINATION OF THE MERGER AGREEMENT OR ABANDONMENT OF THE MERGER OR
(II) 11:59 P.M. EASTERN STANDARD TIME ON NOVEMBER 14, 2009 IF THE MERGER HAS NOT
BEEN CONSUMMATED BY SUCH DATE.
NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT
TO THE CONTRARY, BUYER'S OBLIGATION TO PURCHASE THE SHARES FROM SELLER AND
SELLER'S OBLIGATION TO SELL THE SHARES TO BUYER SHALL BE CONDITIONED ON THE
CONSUMMATION OF THE MERGER.
9.
COVENANT OF SELLER.
AFTER THE EXECUTION OF THIS AGREEMENT AND
PRIOR TO CLOSING, SELLER SHALL NOT ACQUIRE ANY COMMON STOCK, WARRANTS OR OTHER
SECURITIES OF PROSPECT OR EFFECT ANY DERIVATIVE TRANSACTIONS WITH RESPECT
THERETO.
10.
EXPENSES.
ALL COSTS AND EXPENSES INCURRED IN CONNECTION WITH THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION,
LEGAL FEES AND EXPENSES AND ALL OTHER OUT-OF-POCKET COSTS AND EXPENSES OF THIRD
PARTIES INCURRED BY A PARTY IN CONNECTION WITH THE NEGOTIATION AND EFFECTUATION
OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED
THEREBY, SHALL BE THE OBLIGATION OF THE RESPECTIVE PARTY INCURRING SUCH FEES AND
EXPENSES; PROVIDED THAT BUYER SHALL PAY UP TO $25,000 OF THE REASONABLE COSTS
AND EXPENSES INCURRED BY SELLER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
BY THIS AGREEMENT (THE "REIMBURSABLE EXPENSES").
11.
COUNTERPARTS; FACSIMILE.
THIS AGREEMENT MAY BE EXECUTED IN ANY
NUMBER OF COUNTERPARTS, EACH OF WHICH WHEN SO EXECUTED SHALL BE DEEMED TO BE AN
ORIGINAL AND ALL OF WHICH TAKEN TOGETHER SHALL CONSTITUTE ONE AND THE SAME
INSTRUMENT.
THIS AGREEMENT OR ANY COUNTERPART MAY BE EXECUTED VIA FACSIMILE OR
ELECTRONIC TRANSMISSION, AND ANY SUCH EXECUTED FACSIMILE OR ELECTRONIC COPY
SHALL BE TREATED AS AN ORIGINAL.
12.
GOVERNING LAW.
THIS AGREEMENT SHALL FOR ALL PURPOSES BE DEEMED TO
BE MADE UNDER AND SHALL BE CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE