like means to:
Hale and Dorr LLP
60 State Street
Boston, Massachusetts 02109
Telephone:
(617) 526-6000
Facsimile:
(617) 526-5000
Attn:
John A. Burgess, Esq.
If to a Purchaser, as set forth on such Purchaser's execution page hereto.
Each party shall provide notice to the other party of any change in address.
(G)
SUCCESSORS AND ASSIGNS.
THIS AGREEMENT SHALL BE BINDING UPON AND
INURE TO THE BENEFIT OF THE PARTIES AND THEIR SUCCESSORS AND ASSIGNS.
THE
COMPANY MAY NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER.
THE PURCHASERS MAY ASSIGN AND TRANSFER SOME OR ALL OF THEIR RIGHTS HEREUNDER AND
SOME OR ALL OF THE SECURITIES WITHOUT THE PRIOR CONSENT OF THE
19
Company.
Notwithstanding anything to the contrary contained in this Agreement,
the Warrants or the Registration Rights Agreement, the Securities may be pledged
and all rights of a Purchaser under this Agreement or any other agreement or
document related to the transactions contemplated hereby may be assigned,
without further consent of the Company, to a bona fide pledgee in connection
with such Purchaser's margin or brokerage account, subject to compliance with
applicable laws, rules and regulations, including all applicable securities
laws.
(H)
THIRD PARTY BENEFICIARIES.
THIS AGREEMENT IS INTENDED FOR THE
BENEFIT OF THE PARTIES HERETO AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND
ASSIGNS, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED
BY, ANY OTHER PERSON.
(I)
SURVIVAL.
EXCEPT WHERE A LONGER PERIOD IS REQUIRED HEREUNDER,
THE REPRESENTATIONS AND WARRANTIES AND THE AGREEMENTS AND COVENANTS SET FORTH IN
SECTIONS 2, 3, 4, 5 AND 8 HEREOF SHALL SURVIVE FOR TWO (2) YEARS FOLLOWING THE
CLOSING NOTWITHSTANDING ANY DUE DILIGENCE INVESTIGATION CONDUCTED BY OR ON
BEHALF OF THE PURCHASERS.
MOREOVER, NONE OF THE REPRESENTATIONS AND WARRANTIES
MADE BY ONE PARTY HEREIN SHALL ACT AS A WAIVER OF ANY RIGHTS OR REMEDIES THE
OTHER PARTY MAY HAVE UNDER APPLICABLE U.S. FEDERAL OR STATE SECURITIES LAWS.
THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS THE PURCHASERS AND EACH OF THE
PURCHASERS' OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS, MEMBERS, AGENTS AND
AFFILIATES FOR ALL LOSSES OR DAMAGES (INCLUDING WITHOUT LIMITATION REASONABLE
ATTORNEYS' FEES) ARISING AS A RESULT OF OR RELATED TO ANY BREACH OR ALLEGED
BREACH BY THE COMPANY OF ANY OF ITS REPRESENTATIONS OR COVENANTS SET FORTH
HEREIN, INCLUDING WITHOUT LIMITATION THE ADVANCEMENT OF EXPENSES AS THEY ARE
INCURRED.
EXCEPT AS OTHERWISE SET FORTH HEREIN, THE MECHANICS AND PROCEDURES
WITH RESPECT TO THE RIGHTS AND OBLIGATIONS UNDER THIS SECTION 8(I) SHALL BE THE
SAME AS THOSE SET FORTH IN SECTIONS 6(A) AND 6(C) OF THE REGISTRATION RIGHTS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, THOSE PROCEDURES WITH RESPECT TO THE
SETTLEMENT OF CLAIMS AND THE COMPANY'S RIGHT TO ASSUME THE DEFENSE OF CLAIMS.
(J)
PUBLICITY.
THE COMPANY, MEDTRONIC AND BELMONT CAPITAL SHALL HAVE
THE RIGHT TO APPROVE BEFORE ISSUANCE ANY PRESS RELEASES, CURRENT REPORTS FILED
ON FORM 8-K, OR ANY OTHER PUBLIC STATEMENTS WITH RESPECT TO THE TRANSACTIONS
CONTEMPLATED HEREBY; PROVIDED, HOWEVER, THAT THE COMPANY SHALL BE ENTITLED,
WITHOUT THE