INCLUDING ANY PURCHASERS OF THE NOTES.
THE
COMPANY SHALL NOT ASSIGN THIS AGREEMENT OR ANY RIGHTS OR OBLIGATIONS HEREUNDER
WITHOUT THE PRIOR WRITTEN CONSENT OF EACH OF THE HOLDERS OF REGISTRABLE
SECURITIES ISSUED AND ISSUABLE HEREUNDER, INCLUDING BY WAY OF A FUNDAMENTAL
TRANSACTION (UNLESS THE COMPANY IS IN COMPLIANCE WITH THE APPLICABLE PROVISIONS
GOVERNING FUNDAMENTAL TRANSACTIONS SET FORTH IN THE NOTES).
A BUYER MAY ASSIGN
SOME OR ALL OF ITS RIGHTS HEREUNDER TO ANY ACCREDITED
INVESTOR WITH THE CONSENT OF THE COMPANY, SUCH CONSENT NOT TO BE UNREASONABLY
WITHHELD OR DELAYED.
(H)
NO 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.
UNLESS THIS AGREEMENT IS
TERMINATED UNDER SECTION 8, THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
AND THE BUYERS CONTAINED IN SECTIONS 2 AND 3, AND THE AGREEMENTS AND COVENANTS
SET FORTH IN SECTIONS 4, 5 AND 9 SHALL SURVIVE THE CLOSING.
EACH BUYER SHALL BE
RESPONSIBLE ONLY FOR ITS OWN REPRESENTATIONS, WARRANTIES, AGREEMENTS AND
COVENANTS HEREUNDER.
(J)
FURTHER ASSURANCES.
EACH PARTY SHALL DO
AND PERFORM, OR CAUSE TO BE DONE AND PERFORMED, ALL SUCH FURTHER ACTS AND
THINGS, AND SHALL EXECUTE AND DELIVER ALL SUCH OTHER AGREEMENTS, CERTIFICATES,
INSTRUMENTS AND DOCUMENTS, AS ANY OTHER PARTY MAY REASONABLY REQUEST IN ORDER TO
CARRY OUT THE INTENT AND ACCOMPLISH THE PURPOSES OF THIS AGREEMENT AND THE
CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED HEREBY.
(K)
INDEMNIFICATION.
IN CONSIDERATION OF EACH
BUYER'S EXECUTION AND DELIVERY OF THE TRANSACTION DOCUMENTS AND ACQUIRING THE
SECURITIES THEREUNDER AND IN ADDITION TO ALL OF THE COMPANY'S OTHER OBLIGATIONS
UNDER THE TRANSACTION DOCUMENTS, THE COMPANY SHALL DEFEND, PROTECT, INDEMNIFY
AND HOLD HARMLESS EACH BUYER AND EACH OTHER HOLDER OF THE SECURITIES AND ALL OF
THEIR STOCKHOLDERS, PARTNERS, MEMBERS, OFFICERS, DIRECTORS, EMPLOYEES AND DIRECT
OR INDIRECT INVESTORS AND ANY OF THE FOREGOING PERSONS' AGENTS OR OTHER
REPRESENTATIVES (INCLUDING, WITHOUT LIMITATION, THOSE RETAINED IN CONNECTION
WITH THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT) (COLLECTIVELY, THE
"INDEMNITEES") FROM AND AGAINST ANY AND ALL ACTIONS, CAUSES OF ACTION, SUITS,
CLAIMS, LOSSES, COSTS, PENALTIES, FEES, LIABILITIES AND DAMAGES, AND EXPENSES IN
CONNECTION THEREWITH (IRRESPECTIVE OF WHETHER ANY SUCH INDEMNITEE IS A PARTY TO
THE ACTION FOR WHICH INDEMNIFICATION HEREUNDER IS SOUGHT), AND INCLUDING
REASONABLE ATTORNEYS' FEES AND DISBURSEMENTS (THE "INDEMNIFIED LIABILITIES"),
INCURRED BY ANY INDEMNITEE AS A RESULT OF, OR ARISING OUT OF, OR RELATING TO
(A) ANY MISREPRESENTATION OR BREACH OF ANY REPRESENTATION OR WARRANTY MADE BY
THE COMPANY AS OF THE CLOSING DATE IN THE TRANSACTION DOCUMENTS OR ANY OTHER
CERTIFICATE, INSTRUMENT OR DOCUMENT CONTEMPLATED HEREBY OR THEREBY, (B) ANY
BREACH OF ANY COVENANT, AGREEMENT OR OBLIGATION OF THE COMPANY CONTAINED IN THE
TRANSACTION DOCUMENTS OR ANY OTHER CERTIFICATE, INSTRUMENT OR DOCUMENT
CONTEMPLATED HEREBY OR THEREBY OR (C) ANY CAUSE OF ACTION, SUIT OR CLAIM BROUGHT
OR MADE AGAINST SUCH INDEMNITEE BY A THIRD PARTY (INCLUDING FOR THESE PURPOSES