OR AS A GROUP WITH RESPECT TO SUCH OBLIGATIONS OR THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS. EACH PURCHASER
ACKNOWLEDGES THAT NO OTHER PURCHASER HAS ACTED AS AGENT FOR SUCH PURCHASER IN
CONNECTION WITH MAKING ITS INVESTMENT HEREUNDER AND THAT NO PURCHASER WILL BE
ACTING AS AGENT OF SUCH PURCHASER IN CONNECTION WITH MONITORING ITS INVESTMENT
IN THE SHARES OR ENFORCING ITS RIGHTS UNDER THE TRANSACTION DOCUMENTS. EACH
PURCHASER SHALL BE ENTITLED TO INDEPENDENTLY PROTECT AND ENFORCE ITS RIGHTS,
INCLUDING WITHOUT LIMITATION THE RIGHTS ARISING OUT OF THIS AGREEMENT OR OUT OF
THE OTHER TRANSACTION DOCUMENTS, AND IT SHALL NOT BE NECESSARY FOR ANY OTHER
PURCHASER TO BE JOINED AS AN ADDITIONAL PARTY IN ANY PROCEEDING FOR SUCH
PURPOSE. THE COMPANY ACKNOWLEDGES THAT EACH OF THE PURCHASERS HAS BEEN PROVIDED
WITH THE SAME TRANSACTION DOCUMENTS FOR THE PURPOSE OF CLOSING A TRANSACTION
WITH MULTIPLE PURCHASERS AND NOT BECAUSE IT WAS REQUIRED OR REQUESTED TO DO SO
BY ANY PURCHASER. THE COMPANY'S OBLIGATIONS TO EACH PURCHASER UNDER THIS
AGREEMENT ARE IDENTICAL TO ITS OBLIGATIONS TO EACH OTHER PURCHASER OTHER THAN
SUCH DIFFERENCES RESULTING SOLELY FROM THE NUMBER OF SHARES PURCHASED BY SUCH
PURCHASER, BUT REGARDLESS OF WHETHER SUCH OBLIGATIONS ARE MEMORIALIZED HEREIN OR
IN ANOTHER AGREEMENT BETWEEN THE COMPANY AND A PURCHASER.
6.17
TERMINATION. THIS AGREEMENT MAY BE TERMINATED AND THE SALE AND
PURCHASE OF THE SHARES ABANDONED AT ANY TIME PRIOR TO THE CLOSING BY EITHER THE
COMPANY OR ANY PURCHASER (WITH RESPECT TO ITSELF ONLY) UPON WRITTEN NOTICE TO
THE OTHER, IF THE CLOSING HAS NOT BEEN CONSUMMATED ON OR PRIOR TO 5:00 P.M., NEW
YORK CITY TIME, ON THE OUTSIDE DATE; PROVIDED, HOWEVER, THAT THE RIGHT TO
TERMINATE THIS AGREEMENT UNDER THIS SECTION 6.17 SHALL NOT BE AVAILABLE TO ANY
PERSON WHOSE FAILURE TO COMPLY WITH ITS OBLIGATIONS UNDER THIS AGREEMENT HAS
BEEN THE CAUSE OF OR RESULTED IN THE FAILURE OF THE CLOSING TO OCCUR ON OR
BEFORE SUCH TIME. NOTHING IN THIS SECTION 6.17 SHALL BE DEEMED TO RELEASE ANY
PARTY FROM ANY LIABILITY FOR ANY BREACH BY SUCH PARTY OF THE TERMS AND
PROVISIONS OF THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS OR TO IMPAIR THE
RIGHT OF ANY PARTY TO COMPEL SPECIFIC PERFORMANCE BY ANY OTHER PARTY OF ITS
OBLIGATIONS UNDER THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS. IN THE
EVENT OF A TERMINATION PURSUANT TO THIS SECTION, THE COMPANY SHALL PROMPTLY
NOTIFY ALL NON-TERMINATING PURCHASERS AND THE ESCROW AGENT. UPON A TERMINATION
IN ACCORDANCE WITH THIS SECTION, THE COMPANY AND THE TERMINATING PURCHASER(S)
SHALL NOT HAVE ANY FURTHER OBLIGATION OR LIABILITY (INCLUDING ARISING FROM SUCH
TERMINATION) TO THE OTHER, AND NO PURCHASER WILL HAVE ANY LIABILITY TO ANY OTHER
PURCHASER UNDER THE TRANSACTION DOCUMENTS AS A RESULT THEREFROM.
32
IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.
OPTIMER PHARMACEUTICALS, INC.
By:
/s/ Michael N. Chang, Ph.D.
Name: Michael N. Chang, Ph.D.
Title: