BUSINESS ON SUCH DATE WITHOUT
LIABILITY OF ANY PARTY TO ANY OTHER PARTY; PROVIDED, HOWEVER, THAT IF THIS
AGREEMENT IS TERMINATED PURSUANT TO THIS SECTION 10(K), THE COMPANY SHALL BE
OBLIGATED TO PAY EACH PURCHASER (SO LONG AS SUCH PURCHASER IS NOT A BREACHING
PARTY) ITS FEES, COSTS AND EXPENSES (INCLUDING ALL LEGAL FEES AND EXPENSES)
INCURRED IN CONNECTION WITH ITS DUE
41
diligence review of the Company and the negotiation and preparation of the
Transaction Documents.
L.
PLACEMENT AGENT.
THE COMPANY ACKNOWLEDGES THAT IT HAS ENGAGED
UBS AS PLACEMENT AGENT IN CONNECTION WITH THE SALE OF THE NOTES AND THE RELATED
WARRANTS.
THE COMPANY SHALL BE RESPONSIBLE FOR THE PAYMENT OF ANY PLACEMENT
AGENT'S FEES OR BROKER'S COMMISSIONS RELATING TO OR ARISING OUT OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
THE COMPANY SHALL PAY, AND HOLD EACH
PURCHASER HARMLESS AGAINST, ANY LIABILITY, LOSS OR EXPENSE (INCLUDING ATTORNEYS'
FEES AND OUT-OF-POCKET EXPENSES) ARISING IN CONNECTION WITH ANY SUCH CLAIM.
EACH PURCHASER, WITH RESPECT TO ONLY ITSELF, REPRESENTS THAT IT HAS NOT ENGAGED
A PLACEMENT AGENT OR BROKER IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY.
M.
NO STRICT CONSTRUCTION.
THE LANGUAGE USED IN THIS AGREEMENT WILL
BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL
INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
N.
REMEDIES.
EACH PURCHASER AND EACH HOLDER OF THE SECURITIES SHALL
HAVE ALL RIGHTS AND REMEDIES SET FORTH IN THE TRANSACTION DOCUMENTS AND ALL
RIGHTS AND REMEDIES THAT SUCH PURCHASERS AND HOLDERS HAVE BEEN GRANTED AT ANY
TIME UNDER ANY OTHER AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS THAT SUCH
PURCHASERS AND HOLDERS HAVE UNDER ANY LAW.
ANY PERSON HAVING ANY RIGHTS UNDER
ANY PROVISION OF THIS AGREEMENT SHALL BE ENTITLED TO AN INJUNCTION OR
INJUNCTIONS TO PREVENT BREACHES OF THIS AGREEMENT AND TO ENFORCE SUCH RIGHTS
SPECIFICALLY (WITHOUT POSTING A BOND OR OTHER SECURITY OR PROVING ACTUAL
DAMAGES), TO RECOVER DAMAGES BY REASON OF ANY BREACH OF ANY PROVISION OF THIS
AGREEMENT AND TO EXERCISE ALL OTHER RIGHTS GRANTED BY LAW.
O.
PAYMENT SET ASIDE.
TO THE EXTENT THAT THE COMPANY MAKES A
PAYMENT OR PAYMENTS TO THE PURCHASERS HEREUNDER OR PURSUANT TO THE REGISTRATION
RIGHTS AGREEMENT, THE NOTES OR WARRANTS OR THE PURCHASERS ENFORCE OR EXERCISE
THEIR RIGHTS HEREUNDER OR THEREUNDER, AND SUCH PAYMENT OR PAYMENTS OR THE
PROCEEDS OF SUCH ENFORCEMENT OR EXERCISE OR ANY PART THEREOF ARE SUBSEQUENTLY
INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE, RECOVERED
FROM, DISGORGED BY OR ARE REQUIRED TO BE REFUNDED, REPAID OR OTHERWISE RESTORED
TO THE COMPANY, BY A TRUSTEE, RECEIVER OR ANY OTHER PERSON UNDER ANY LAW
(INCLUDING ANY BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON LAW OR EQUITABLE
CAUSE OF ACTION), THEN TO THE EXTENT OF ANY SUCH RESTORATION THE OBLIGATION OR
PART THEREOF ORIGINALLY INTENDED TO BE SATISFIED SHALL BE REVIVED AND CONTINUED
IN FULL FORCE AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN MADE OR SUCH
ENFORCEMENT OR SETOFF HAD NOT OCCURRED.