TRANSACTION DOCUMENTS OR (C) ANY CAUSE OF ACTION, SUIT OR CLAIM
BROUGHT OR MADE AGAINST SUCH INDEMNITEE BY A THIRD PARTY (INCLUDING FOR THESE
PURPOSES A DERIVATIVE ACTION BROUGHT ON BEHALF OF THE COMPANY) AND ARISING OUT
OF OR RESULTING FROM (I) THE EXECUTION, DELIVERY, PERFORMANCE OR ENFORCEMENT OF
THE TRANSACTION DOCUMENTS, (II) ANY TRANSACTION FINANCED OR TO BE FINANCED IN
WHOLE OR IN PART, DIRECTLY OR INDIRECTLY, WITH THE PROCEEDS OF THE ISSUANCE OF
THE SECURITIES, OR (III) THE STATUS OF SUCH BUYER OR HOLDER OF THE SECURITIES AS
AN INVESTOR IN THE COMPANY PURSUANT TO THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS; PROVIDED THAT INDEMNIFICATION PURSUANT TO THIS CLAUSE
(III) SHALL NOT BE AVAILABLE TO THE EXTENT ARISING PRIMARILY FROM SUCH BUYER'S
FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
TO THE EXTENT THAT THE FOREGOING
UNDERTAKING BY THE COMPANY MAY BE UNENFORCEABLE FOR ANY REASON, THE COMPANY
SHALL MAKE THE MAXIMUM CONTRIBUTION TO THE PAYMENT AND SATISFACTION OF EACH OF
THE INDEMNIFIED LIABILITIES THAT IS PERMISSIBLE UNDER APPLICABLE LAW.
EXCEPT AS
OTHERWISE SET FORTH HEREIN, THE MECHANICS AND PROCEDURES WITH RESPECT
30
TO THE RIGHTS AND OBLIGATIONS UNDER THIS SECTION 9(K) SHALL BE THE SAME AS THOSE
SET FORTH IN SECTION 6 OF THE REGISTRATION RIGHTS AGREEMENT.
(L)
NO STRICT CONSTRUCTION.
THE LANGUAGE
USED IN THIS AGREEMENT WILL BE DEEMED TO BE THE LANGUAGE CHOSEN BY THE PARTIES
TO EXPRESS THEIR MUTUAL INTENT, AND NO RULES OF STRICT CONSTRUCTION WILL BE
APPLIED AGAINST ANY PARTY.
(M)
REMEDIES.
EACH BUYER AND EACH HOLDER OF THE
SECURITIES SHALL HAVE ALL RIGHTS AND REMEDIES SET FORTH IN THE TRANSACTION
DOCUMENTS AND ALL RIGHTS AND REMEDIES WHICH SUCH HOLDERS HAVE BEEN GRANTED AT
ANY TIME UNDER ANY OTHER AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS WHICH SUCH
HOLDERS HAVE UNDER ANY LAW.
ANY PERSON HAVING ANY RIGHTS UNDER ANY PROVISION OF
THIS AGREEMENT SHALL BE ENTITLED TO ENFORCE SUCH RIGHTS SPECIFICALLY (WITHOUT
POSTING A BOND OR OTHER SECURITY), TO RECOVER DAMAGES BY REASON OF ANY BREACH OF
ANY PROVISION OF THIS AGREEMENT AND TO EXERCISE ALL OTHER RIGHTS GRANTED BY
LAW.
FURTHERMORE, THE COMPANY RECOGNIZES THAT IN THE EVENT THAT IT FAILS TO
PERFORM, OBSERVE, OR DISCHARGE ANY OR ALL OF ITS OBLIGATIONS UNDER THE
TRANSACTION DOCUMENTS, ANY REMEDY AT LAW MAY PROVE TO BE INADEQUATE RELIEF TO
THE BUYERS.
THE COMPANY THEREFORE AGREES THAT THE BUYERS SHALL BE ENTITLED TO
SEEK TEMPORARY AND PERMANENT INJUNCTIVE RELIEF IN ANY SUCH CASE WITHOUT THE
NECESSITY OF PROVING ACTUAL DAMAGES AND WITHOUT POSTING A BOND OR OTHER
SECURITY.
(N)
PAYMENT SET ASIDE.
TO THE EXTENT THAT THE
COMPANY MAKES A PAYMENT OR PAYMENTS TO THE BUYERS HEREUNDER OR PURSUANT TO ANY
OF THE OTHER TRANSACTION DOCUMENTS OR THE BUYERS ENFORCE OR EXERCISE THEIR
RIGHTS HEREUNDER OR THEREUNDER, AND SUCH PAYMENT OR PAYMENTS OR THE PROCEEDS OF
SUCH ENFORCEMENT OR EXERCISE OR ANY PART THEREOF ARE SUBSEQUENTLY INVALIDATED,
DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE, RECOVERED FROM, DISGORGED
BY OR ARE REQUIRED TO