PARTY (INCLUDING FOR THESE
PURPOSES A DERIVATIVE ACTION BROUGHT ON BEHALF OF THE COMPANY) AND ARISING OUT
OF OR RESULTING FROM (I) THE EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF
THE TRANSACTION DOCUMENTS OR ANY OTHER CERTIFICATE, INSTRUMENT OR DOCUMENT
CONTEMPLATED HEREBY OR THEREBY, (II) ANY TRANSACTION FINANCED OR TO BE FINANCED
IN WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF THE ISSUANCE
OF THE SECURITIES, OR (III) THE STATUS OF SUCH PURCHASER OR HOLDER OF THE
SECURITIES AS AN INVESTOR IN THE COMPANY PURSUANT TO THE TRANSACTIONS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS (UNLESS, AND ONLY TO THE EXTENT THAT,
SUCH ACTION IS BASED SOLELY UPON A BREACH OF SUCH PURCHASER'S REPRESENTATIONS,
WARRANTIES OR COVENANTS UNDER THE TRANSACTION DOCUMENTS OR ANY CONDUCT BY SUCH
PURCHASER WHICH CONSTITUTES FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT).
TO
THE EXTENT THAT THE FOREGOING UNDERTAKING BY THE COMPANY MAY BE UNENFORCEABLE
FOR ANY REASON, THE COMPANY SHALL MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT
AND SATISFACTION OF EACH OF THE INDEMNIFIED LIABILITIES WHICH IS PERMISSIBLE
UNDER APPLICABLE LAW.
IF ANY ACTION SHALL BE BROUGHT AGAINST ANY PURCHASER
PARTY IN RESPECT OF WHICH INDEMNITY MAY BE SOUGHT PURSUANT TO THIS AGREEMENT,
SUCH PURCHASER PARTY SHALL PROMPTLY NOTIFY THE COMPANY IN WRITING, AND THE
COMPANY SHALL HAVE THE RIGHT TO ASSUME THE DEFENSE THEREOF WITH COUNSEL OF ITS
OWN CHOOSING REASONABLY ACCEPTABLE TO SUCH PURCHASER.
ANY PURCHASER PARTY SHALL
HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL IN ANY SUCH ACTION AND PARTICIPATE IN
THE DEFENSE THEREOF, BUT THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE
EXPENSE OF SUCH PURCHASER PARTY EXCEPT TO THE EXTENT THAT (I) THE EMPLOYMENT
THEREOF HAS BEEN SPECIFICALLY AUTHORIZED BY THE COMPANY IN WRITING, (II) THE
COMPANY HAS FAILED AFTER A REASONABLE PERIOD OF TIME TO ASSUME SUCH DEFENSE AND
TO EMPLOY COUNSEL REASONABLY ACCEPTABLE TO SUCH PURCHASER, OR (III) IN SUCH
ACTION THERE IS, IN THE REASONABLE OPINION OF SUCH SEPARATE COUNSEL, A MATERIAL
CONFLICT ON ANY MATERIAL ISSUE BETWEEN THE POSITION OF THE COMPANY AND THE
POSITION OF SUCH PURCHASER PARTY.
THE COMPANY WILL NOT BE LIABLE TO ANY
PURCHASER PARTY UNDER THIS AGREEMENT (I) FOR ANY SETTLEMENT BY A PURCHASER PARTY
EFFECTED
27
WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED; OR (II) TO THE EXTENT, BUT ONLY TO THE EXTENT THAT A LOSS,
CLAIM, DAMAGE OR LIABILITY IS ATTRIBUTABLE TO ANY PURCHASER PARTY'S BREACH OF
ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS MADE BY THE
PURCHASERS IN THIS AGREEMENT OR IN THE OTHER TRANSACTION DOCUMENTS. THE COMPANY
SHALL NOT, WITHOUT THE PRIOR WRITTEN CONSENT OF THE APPLICABLE PURCHASER PARTY,
CONSENT TO ENTRY OF ANY JUDGMENT OR ENTER INTO ANY SETTLEMENT OR OTHER
COMPROMISE WHICH DOES NOT INCLUDE AS AN UNCONDITIONAL TERM THEREOF THE GIVING BY
THE CLAIMANT OR PLAINTIFF TO THE APPLICABLE PURCHASER PARTY OF A RELEASE FROM
ALL LIABILITY IN RESPECT TO SUCH CLAIM (AS DEFINED IN THE REGISTRATION RIGHTS
AGREEMENT) OR LITIGATION.
THE FAILURE