PURCHASER AND RELATED PERSON FROM AND AGAINST ANY AND ALL LOSSES, AS
INCURRED, ARISING OUT OF OR RELATING TO ANY BREACH BY THE COMPANY OF ANY OF THE
REPRESENTATIONS, WARRANTIES OR COVENANTS MADE BY THE COMPANY IN THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT, OR ANY ALLEGATION BY A THIRD PARTY THAT, IF
TRUE, WOULD CONSTITUTE SUCH A BREACH.
THE CONDUCT OF ANY PROCEEDINGS FOR WHICH
INDEMNIFICATION IS AVAILABLE UNDER THIS PARAGRAPH SHALL BE GOVERNED BY
SECTION 6.4(C) BELOW.
THE INDEMNIFICATION OBLIGATIONS OF THE COMPANY UNDER THIS
PARAGRAPH SHALL BE IN ADDITION TO ANY LIABILITY THAT THE COMPANY MAY OTHERWISE
HAVE AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY SUCCESSORS,
ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF THE PURCHASERS AND ANY SUCH
RELATED PERSONS.
IF THE COMPANY BREACHES ITS OBLIGATIONS UNDER ANY TRANSACTION
DOCUMENT, THEN, IN ADDITION TO ANY OTHER LIABILITIES THE COMPANY MAY HAVE UNDER
ANY TRANSACTION DOCUMENT OR APPLICABLE LAW, THE COMPANY SHALL PAY OR REIMBURSE
THE PURCHASERS ON DEMAND FOR ALL COSTS OF COLLECTION AND ENFORCEMENT (INCLUDING
REASONABLE ATTORNEYS FEES AND EXPENSES).
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE COMPANY SPECIFICALLY AGREES TO REIMBURSE THE PURCHASERS ON DEMAND
FOR ALL COSTS OF ENFORCING THE INDEMNIFICATION OBLIGATIONS IN THIS PARAGRAPH.
ARTICLE V
CONDITIONS
5.1
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF
THE PURCHASERS.
THE OBLIGATION OF EACH PURCHASER TO ACQUIRE SECURITIES AT THE
CLOSING IS SUBJECT TO THE SATISFACTION OR WAIVER BY SUCH PURCHASER, AT OR BEFORE
THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY CONTAINED HEREIN SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE CLOSING
AS THOUGH MADE ON AND AS OF SUCH DATE; AND
20
(B)
PERFORMANCE.
THE COMPANY AND EACH OTHER
PURCHASER SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS
WITH ALL COVENANTS, AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION
DOCUMENTS TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY IT AT OR PRIOR TO THE
CLOSING.
(C)
NO INJUNCTION.
NO STATUTE, RULE,
REGULATION, EXECUTIVE ORDER, DECREE, RULING OR INJUNCTION SHALL HAVE BEEN
ENACTED, ENTERED, PROMULGATED OR ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY
OF COMPETENT JURISDICTION THAT PROHIBITS THE CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS;
(D)
ADVERSE CHANGES.
SINCE THE DATE OF
EXECUTION OF THIS AGREEMENT, NO EVENT OR SERIES OF EVENTS SHALL HAVE OCCURRED
THAT REASONABLY WOULD BE EXPECTED TO HAVE OR RESULT IN A MATERIAL ADVERSE
EFFECT; AND
(E)
NO SUSPENSIONS OF TRADING IN COMMON STOCK;
LISTING.
TRADING IN THE COMMON STOCK SHALL NOT HAVE BEEN SUSPENDED BY THE
COMMISSION OR ANY TRADING MARKET (EXCEPT FOR ANY SUSPENSIONS OF TRADING OF NOT
MORE THAN THREE TRADING DAYS (WHETHER OR NOT CONSECUTIVE) SOLELY TO PERMIT
DISSEMINATION OF MATERIAL INFORMATION REGARDING THE COMPANY) AT ANY TIME SINCE
THE DATE OF EXECUTION OF THIS AGREEMENT, AND THE COMMON STOCK SHALL HAVE BEEN AT
ALL TIMES SINCE SUCH DATE LISTED FOR TRADING ON AN