LEGAL COUNSEL IN ITS REVIEW AND
NEGOTIATION OF THE TRANSACTION DOCUMENTS.
THE COMPANY HAS ELECTED TO PROVIDE
ALL PURCHASERS WITH THE SAME TERMS AND TRANSACTION DOCUMENTS FOR THE CONVENIENCE
OF THE COMPANY AND NOT BECAUSE IT WAS REQUIRED OR REQUESTED TO DO SO BY ANY
PURCHASER.
6.17
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED AND THE SALE AND
PURCHASE OF THE SHARES AND WARRANTS ABANDONED AT ANY TIME PRIOR TO THE CLOSING
BY EITHER THE COMPANY OR ANY PURCHASER (WITH RESPECT TO ITSELF ONLY) UPON
WRITTEN NOTICE TO THE OTHER, IF THE CLOSING HAS NOT BEEN CONSUMMATED ON OR PRIOR
TO 5:00 P.M., NEW YORK CITY TIME, ON THE OUTSIDE DATE; PROVIDED, HOWEVER , THAT
THE RIGHT TO TERMINATE THIS AGREEMENT UNDER THIS SECTION 6.17 SHALL NOT BE
AVAILABLE TO ANY PERSON WHOSE FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS
AGREEMENT HAS BEEN THE CAUSE OF OR RESULTED IN THE FAILURE OF THE CLOSING TO
OCCUR ON OR BEFORE SUCH TIME.
NOTHING IN THIS SECTION 6.17 SHALL BE DEEMED TO
RELEASE ANY PARTY FROM ANY LIABILITY FOR ANY BREACH BY SUCH PARTY OF THE TERMS
AND PROVISIONS OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS OR TO IMPAIR
THE RIGHT OF ANY PARTY TO COMPEL SPECIFIC PERFORMANCE BY ANY OTHER PARTY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
IN THE
EVENT OF A TERMINATION PURSUANT TO THIS SECTION, THE COMPANY SHALL PROMPTLY
NOTIFY ALL NON-TERMINATING PURCHASERS.
UPON A TERMINATION IN ACCORDANCE WITH
THIS SECTION, THE COMPANY AND THE TERMINATING PURCHASER(S) SHALL NOT HAVE ANY
FURTHER OBLIGATION OR LIABILITY (INCLUDING ARISING FROM SUCH TERMINATION) TO THE
OTHER, AND NO PURCHASER WILL HAVE ANY LIABILITY TO ANY OTHER PURCHASER UNDER THE
TRANSACTION DOCUMENTS AS A RESULT THEREFROM.
25
6.18
WAIVER OF CONFLICTS.
EACH PARTY TO THIS AGREEMENT ACKNOWLEDGES
THAT COMPANY COUNSEL, OUTSIDE GENERAL COUNSEL TO THE COMPANY, MAY HAVE IN THE
PAST PERFORMED AND MAY NOW OR IN THE FUTURE REPRESENT ONE OR MORE PURCHASERS OR
THEIR AFFILIATES IN MATTERS UNRELATED TO THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, INCLUDING REPRESENTATION OF SUCH PURCHASERS OR THEIR
AFFILIATES IN MATTERS OF A SIMILAR NATURE TO THE TRANSACTIONS CONTEMPLATED BY
THE TRANSACTION DOCUMENTS.
THE APPLICABLE RULES OF PROFESSIONAL CONDUCT REQUIRE
THAT COMPANY COUNSEL INFORM THE PARTIES HEREUNDER OF THIS REPRESENTATION AND
OBTAIN THEIR CONSENT.
COMPANY COUNSEL HAS SERVED AS OUTSIDE GENERAL COUNSEL TO
THE COMPANY AND HAS NEGOTIATED THE TERMS OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS SOLELY ON BEHALF OF THE COMPANY.
THE COMPANY AND EACH
PURCHASER HEREBY (A) ACKNOWLEDGE THAT THEY HAVE HAD AN OPPORTUNITY TO ASK FOR
AND HAVE OBTAINED INFORMATION RELEVANT TO SUCH REPRESENTATION, INCLUDING
DISCLOSURE OF THE REASONABLY FORESEEABLE ADVERSE CONSEQUENCES OF SUCH
REPRESENTATION; (B) ACKNOWLEDGE THAT WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS, COMPANY COUNSEL HAS REPRESENTED
SOLELY THE COMPANY, AND NOT ANY PURCHASER OR ANY STOCKHOLDER, DIRECTOR OR
EMPLOYEE OF THE COMPANY OR ANY PURCHASER; AND (C) GIVES ITS INFORMED CONSENT TO
COMPANY COUNSEL'S REPRESENTATION OF THE COMPANY