ACCORDANCE WITH
APPLICABLE SECURITIES LAWS FROM AND AFTER THE TIME THAT THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED PURSUANT TO THE
INITIAL PRESS RELEASE AS DESCRIBED IN SECTION 4.2 AND (III) NO PURCHASER SHALL
HAVE ANY DUTY OF CONFIDENTIALITY TO THE COMPANY OR ITS SUBSIDIARIES AFTER THE
ISSUANCE OF THE INITIAL PRESS RELEASE AS DESCRIBED IN SECTION 4.2.
NOTWITHSTANDING THE FOREGOING, IN THE CASE OF A PURCHASER THAT IS A
MULTI-MANAGED INVESTMENT VEHICLE WHEREBY SEPARATE PORTFOLIO MANAGERS MANAGE
SEPARATE PORTIONS OF SUCH PURCHASER'S ASSETS AND THE PORTFOLIO MANAGERS HAVE NO
DIRECT KNOWLEDGE OF THE INVESTMENT DECISIONS MADE BY THE PORTFOLIO MANAGERS
MANAGING OTHER PORTIONS OF SUCH PURCHASER'S ASSETS, THE COVENANT SET FORTH ABOVE
SHALL ONLY APPLY WITH RESPECT TO THE PORTION OF ASSETS MANAGED BY THE PORTFOLIO
MANAGER THAT MADE THE INVESTMENT DECISION TO PURCHASE THE SECURITIES COVERED BY
THIS AGREEMENT.
4.11
DELIVERY OF WARRANTS AFTER CLOSING.
THE COMPANY
SHALL DELIVER, OR CAUSE TO BE DELIVERED, THE RESPECTIVE WARRANT CERTIFICATES
PURCHASED BY EACH PURCHASER TO SUCH PURCHASER WITHIN THREE TRADING DAYS OF THE
CLOSING DATE.
4.12
COOPERATION.
THE COMPANY AND EACH OF THE
PURCHASERS SHALL REASONABLY COOPERATE AND USE THEIR RESPECTIVE COMMERCIALLY
REASONABLE EFFORTS TO PROVIDE ANY INFORMATION REASONABLY REQUESTED BY THE OTHER
PARTIES HERETO WITH RESPECT TO SUCH FILINGS AND OTHER DISCLOSURES AS MAY BE
NECESSARY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREBY.
19
ARTICLE V.
MISCELLANEOUS
5.1
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED BY (I) ANY PURCHASER, AS TO SUCH PURCHASER'S OBLIGATIONS HEREUNDER
ONLY AND WITHOUT ANY EFFECT WHATSOEVER ON THE OBLIGATIONS BETWEEN THE COMPANY
AND THE OTHER PURCHASERS, OR (II) BY THE COMPANY, IN EACH CASE, BY WRITTEN
NOTICE TO THE OTHER PARTIES, IF THE CLOSING HAS NOT BEEN CONSUMMATED ON OR
BEFORE AUGUST 28, 2009; PROVIDED, HOWEVER, THAT NO SUCH TERMINATION WILL AFFECT
THE RIGHT OF ANY PARTY TO SUE FOR ANY BREACH BY THE OTHER PARTY (OR PARTIES),
FOR WHICH PURPOSE THE PROVISIONS OF SECTION 4.5 SHALL REMAIN IN EFFECT IN
ACCORDANCE WITH THE PROVISIONS AND LIMITATIONS THEREOF.
5.2
FEES AND EXPENSES.
EXCEPT AS EXPRESSLY SET
FORTH IN THE TRANSACTION DOCUMENTS TO THE CONTRARY, EACH PARTY SHALL PAY THE
FEES AND EXPENSES OF ITS ADVISERS, COUNSEL, ACCOUNTANTS AND OTHER EXPERTS, IF
ANY, AND ALL OTHER EXPENSES INCURRED BY SUCH PARTY INCIDENT TO THE NEGOTIATION,
PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF THIS AGREEMENT.
THE COMPANY
SHALL PAY ALL TRANSFER AGENT FEES, STAMP TAXES AND OTHER TAXES AND DUTIES LEVIED
IN CONNECTION WITH THE DELIVERY OF ANY SECURITIES TO THE PURCHASERS.
5.3
ENTIRE AGREEMENT.
THE TRANSACTION
DOCUMENTS, TOGETHER WITH THE EXHIBITS AND SCHEDULES THERETO, THE PROSPECTUS AND
THE PROSPECTUS SUPPLEMENT, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES WITH
RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT TO SUCH MATTERS, WHICH THE PARTIES
ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH DOCUMENTS, EXHIBITS AND SCHEDULES.
5.4
NOTICES.
ANY AND ALL NOTICES OR OTHER
COMMUNICATIONS OR DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER
SHALL BE IN