PRIOR APPROVAL OF MEDTRONIC OR BELMONT CAPITAL, TO MAKE ANY PRESS
RELEASE OR CURRENT REPORT FILED ON FORM 8-K WITH RESPECT TO SUCH TRANSACTIONS AS
IS REQUIRED BY APPLICABLE LAW AND REGULATIONS (ALTHOUGH THE COMPANY SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO CONSULT WITH MEDTRONIC AND BELMONT CAPITAL IN
CONNECTION WITH ANY SUCH PRESS RELEASE AND FILING PRIOR TO ITS RELEASE AND SHALL
PROVIDE MEDTRONIC AND BELMONT CAPITAL WITH COPIES THEREOF).
THE COMPANY SHALL
ISSUE A PRESS RELEASE ANNOUNCING THE CLOSING OF THIS TRANSACTION WITHIN THREE
(3) BUSINESS DAYS OF THE CLOSING DATE.
(K)
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
THE 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.
(L)
TERMINATION.
IN THE EVENT THAT THE CLOSING SHALL NOT HAVE
OCCURRED ON OR BEFORE MAY 31, 2003 UNLESS THE PARTIES AGREE OTHERWISE, THIS
AGREEMENT SHALL TERMINATE AT THE CLOSE OF BUSINESS ON SUCH DATE.
NOTWITHSTANDING ANY TERMINATION OF THIS AGREEMENT, ANY PARTY
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not in breach of this Agreement shall preserve all rights and remedies it may
have against another party hereto for a breach of this Agreement prior to or
relating to the termination hereof.
(M)
JOINT PARTICIPATION IN DRAFTING.
EACH PARTY TO THIS AGREEMENT HAS
PARTICIPATED IN THE NEGOTIATION AND DRAFTING OF THIS AGREEMENT, THE WARRANTS AND
THE REGISTRATION RIGHTS AGREEMENT.
AS SUCH, THE LANGUAGE USED HEREIN AND
THEREIN SHALL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES HERETO TO
EXPRESS THEIR MUTUAL INTENT, AND NO RULE OF STRICT CONSTRUCTION WILL BE APPLIED
AGAINST ANY PARTY TO THIS AGREEMENT.
(N)
EXCULPATION AMONG PURCHASERS.
EACH PURCHASER ACKNOWLEDGES THAT IT
IS NOT RELYING UPON ANY PERSON, FIRM OR CORPORATION, OTHER THAN THE COMPANY AND
ITS OFFICERS AND DIRECTORS, IN MAKING ITS INVESTMENT DECISION TO INVEST IN THE
COMPANY.
EACH PURCHASER AGREES THAT NO PURCHASER NOR THE RESPECTIVE CONTROLLING
PERSONS, OFFICERS, DIRECTORS, PARTNERS, AGENTS OR EMPLOYEES OF ANY PURCHASER
SHALL BE LIABLE TO ANY OTHER PURCHASER FOR ANY ACTION HERETOFORE OR HEREAFTER
TAKEN, OR FOR ANY FAILURE TO ACT, BY ANY OF THEM IN CONNECTION WITH THE PURCHASE
OF THE SECURITIES.
(O)
FOR PURPOSES HEREOF, "BUSINESS DAY" MEANS ANY DAY EXCEPT SATURDAY,
SUNDAY OR OTHER DAY ON WHICH COMMERCIAL BANKS IN THE CITY OF NEW YORK ARE
AUTHORIZED OR REQUIRED TO CLOSE BY LAW.
(P)
FOR PURPOSES HEREOF, "KNOWLEDGE OF THE COMPANY" MEANS (I) THE
ACTUAL KNOWLEDGE OF DAVID A. CHAZANOVITZ, ROBERT B. PALARDY, ROBERT LAROCHE,
KEVIN S. LIBRETT OR JAMES W. SHEPPARD AND (II) THAT KNOWLEDGE WHICH SUCH PERSONS
COULD HAVE OBTAINED IF THEY HAD MADE THE DUE INQUIRY AND EXERCISED THE DUE
DILIGENCE THAT A PRUDENT BUSINESS PERSON WOULD HAVE MADE OR EXERCISED WITH
RESPECT TO THE MANAGEMENT OF HIS OR HER BUSINESS AFFAIRS.
[Signature pages follow]
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