PUTS, OPTIONS OR FUTURES WITH RESPECT TO THE COMMON STOCK FOR A PERIOD OF
TWENTY (20) DAYS FROM THE DATE HEREOF.
9
5.
INDEMNIFICATION.
TO THE EXTENT PERMITTED BY LAW, THE COMPANY SHALL
INDEMNIFY AND HOLD THE PURCHASER HARMLESS FROM AND PAY ANY AND ALL LOSSES,
EXPENSES, COSTS AND DAMAGES, REASONABLE ATTORNEYS' FEES, ATTRIBUTABLE TO ANY
THIRD PARTY CLAIM, SUIT OR PROCEEDING AGAINST ANY PURCHASER ARISING FROM OR
ALLEGING ANY BREACH OR INACCURACY OF ANY REPRESENTATION OR WARRANTY OR ANY
BREACH OF ANY COVENANT, AGREEMENT, OR UNDERTAKING MADE BY THE COMPANY IN THIS
AGREEMENT; PROVIDED, HOWEVER, THAT THE INDEMNITY CONTAINED IN THIS SECTION 5
SHALL NOT APPLY TO ANY AMOUNTS PAID IN SETTLEMENT OR COMPROMISE OF ANY SUCH
LOSS, DAMAGE, CLAIM, SUIT, OR PROCEEDING IF SUCH SETTLEMENT IS EFFECTED WITHOUT
THE CONSENT OF THE COMPANY (WHICH WILL NOT BE UNREASONABLY WITHHELD).
6.
MISCELLANEOUS.
(A)
SUCCESSOR AND ASSIGNS.
SUBJECT TO COMPLIANCE WITH APPLICABLE
FEDERAL AND STATE SECURITIES LAWS, THE PURCHASER (OR SUBSEQUENT HOLDER OF ANY
PREFERRED STOCK) MAY ASSIGN AND TRANSFER ITS RIGHTS AND OBLIGATIONS UNDER THIS
AGREEMENT AT SUCH TIMES AND UPON SUCH CONDITIONS AS THE PURCHASER SHALL
DETERMINE IN ITS SOLE DISCRETION SUBJECT TO THE OBLIGATIONS IMPOSED ON THE
PURCHASER BY THIS AGREEMENT; PROVIDED, HOWEVER, THAT (I) EACH SUCH TRANSFEREE
SHALL BE OF SUFFICIENTLY SOUND FINANCIAL CONDITION TO SATISFY THE OBLIGATIONS
BEING TRANSFERRED AND ONLY IF SUCH TRANSFER OR ASSIGNMENT AND DELIVERY WILL NOT
ADVERSELY AFFECT THE COMPANY'S ABILITY TO INDEPENDENTLY ENFORCE ITS RIGHTS
AGAINST ANY SUCH TRANSFEREE AND (II) EACH SUCH PERMITTED TRANSFEREE OR ASSIGNEE
SHALL BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND THE OTHER
APPLICABLE TRANSACTION DOCUMENTS PURSUANT TO A WRITTEN INSTRUMENT SIGNED BY SUCH
PERMITTED TRANSFEREE REASONABLY SATISFACTORY TO THE COMPANY. SUBJECT TO THE
FOREGOING, THIS AGREEMENT WILL BIND AND INURE TO THE PARTIES AND THEIR
RESPECTIVE SUCCESSORS AND PERMITTED ASSIGNS.
(B)
GOVERNING LAW.
THIS AGREEMENT AND ALL ACTS AND TRANSACTIONS
PURSUANT HERETO AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE
GOVERNED, CONSTRUED AND INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
NEW YORK, WITHOUT GIVING EFFECT TO PRINCIPLES OF CONFLICTS OF LAW.
(C)
COUNTERPARTS.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL AND ALL OF WHICH
TOGETHER SHALL CONSTITUTE ONE INSTRUMENT.
(D)
TITLES AND SUBTITLES.
THE TITLES AND SUBTITLES USED IN THIS
AGREEMENT ARE USED FOR CONVENIENCE ONLY AND ARE NOT TO BE CONSIDERED IN
CONSTRUING OR INTERPRETING THIS AGREEMENT.
(E)
NOTICES.
ANY NOTICE REQUIRED OR PERMITTED BY THIS AGREEMENT SHALL
BE IN WRITING AND SHALL BE DEEMED SUFFICIENT UPON RECEIPT, WHEN DELIVERED
PERSONALLY, OR ONE BUSINESS DAY AFTER BEING SENT BY OVERNIGHT DELIVERY SERVICE
OR UPON SENDING IF SENT BY CONFIRMED FACSIMILE OR EMAIL, OR 5 DAYS AFTER BEING
DEPOSITED IN THE U.S. MAIL AS CERTIFIED OR REGISTERED MAIL WITH POSTAGE PREPAID,
IF SUCH NOTICE IS ADDRESSED TO THE PARTY TO BE NOTIFIED AT SUCH PARTY'S ADDRESS,
FACSIMILE NUMBER OR EMAIL ADDRESS AS SET