that would otherwise be required in connection with the First Closing
by virtue of the exemption described in Section 5.26, and indicating that the
audit committee of the Company's Board of Directors has expressly approved the
First Closing and the Company's request to the Nasdaq Stock Market for the
exemption in connection therewith.
9.17
Rights Plan Termination.
The Rights Plan and all rights provided
to the Company's stockholders thereunder shall be terminated by the Company's
Board of Directors (the "Rights Plan Termination") within 10 calendar days after
the Signing Date.
The Rights Plan Termination shall be effected by (a) the
Company in accordance with Section 23(b)(i) of the Right Plan, pursuant to which
the Company shall redeem all of the "Rights" (as defined in the Rights Plan) in
accordance with Section 23(c) and/or Section 23(d) of the Rights Plan, and (b)
the Company entering into a written agreement with the Rights Agent providing
for the termination of the Rights Plan immediately, without further action or
deed, upon completion of the redemption procedures specified in Section 23 of
the Rights Plan.
10.
SURVIVAL AND INDEMNIFICATION.
10.1.
SURVIVAL.
ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND
AGREEMENTS CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE REPRESENTATIONS,
WARRANTIES, COVENANTS AND AGREEMENTS AS OF THE DATE HEREOF AND SHALL SURVIVE THE
CLOSING DATE UNTIL THE THIRD ANNIVERSARY THEREOF; PROVIDED, HOWEVER, THAT THE
PROVISIONS CONTAINED IN: (A) SECTIONS 3.2 AND 5.4 HEREOF SHALL SURVIVE
INDEFINITELY; AND (B) SECTIONS 5.10 AND 5.15 SHALL SURVIVE UNTIL 90 DAYS AFTER
THE APPLICABLE STATUTE OF LIMITATIONS.
NOTWITHSTANDING THE FOREGOING, ALL
REPRESENTATIONS, WARRANTIES, COVENANTS AND AGREEMENTS CONTAINED IN THIS
AGREEMENT SHALL EXPIRE AND HAVE NO FURTHER FORCE AND EFFECT IN THE EVENT THAT
THE AGREEMENT IS TERMINATED PURSUANT TO SECTION 9.15 HEREOF.
10.2.
INDEMNIFICATION.
THE COMPANY AGREES TO INDEMNIFY AND HOLD
HARMLESS, EACH INVESTOR AND ITS AFFILIATES AND THE DIRECTORS, OFFICERS,
EMPLOYEES AND AGENTS OF EACH INVESTOR
35
AND ITS AFFILIATES, FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DAMAGES,
LIABILITIES AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEY FEES
AND DISBURSEMENTS AND OTHER EXPENSES INCURRED IN CONNECTION WITH INVESTIGATING,
PREPARING OR DEFENDING ANY ACTION, CLAIM OR PROCEEDING, PENDING OR THREATENED
AND THE COSTS OF ENFORCEMENT HEREOF) (COLLECTIVELY, "LOSSES") TO WHICH SUCH
PERSON MAY BECOME SUBJECT AS A RESULT OF ANY BREACH OF REPRESENTATION, WARRANTY,
COVENANT OR AGREEMENT MADE BY, OR TO BE PERFORMED ON THE PART OF, THE COMPANY
UNDER THE TRANSACTION DOCUMENTS, AND WILL REIMBURSE ANY SUCH PERSON FOR ALL SUCH
AMOUNTS AS THEY ARE INCURRED BY SUCH PERSON.
10.3.
CONDUCT OF INDEMNIFICATION PROCEEDINGS.
PROMPTLY AFTER RECEIPT BY
ANY PERSON (THE "INDEMNIFIED PERSON") OF NOTICE OF ANY DEMAND, CLAIM OR
CIRCUMSTANCES WHICH WOULD OR MIGHT GIVE RISE TO A CLAIM OR THE COMMENCEMENT OF
ANY ACTION, PROCEEDING OR INVESTIGATION IN RESPECT OF WHICH INDEMNITY MAY BE
SOUGHT PURSUANT TO SECTION 10.2, SUCH INDEMNIFIED PERSON SHALL PROMPTLY NOTIFY
THE COMPANY IN WRITING AND THE COMPANY SHALL ASSUME THE DEFENSE THEREOF,
INCLUDING THE EMPLOYMENT OF COUNSEL REASONABLY SATISFACTORY TO SUCH INDEMNIFIED
PERSON,