AGREEMENTS OR UNDERSTANDINGS SUCH INVESTOR MAY HAVE WITH ANY
SUCH SHAREHOLDER OR ANY VIOLATIONS BY SUCH INVESTOR OF STATE OR FEDERAL
SECURITIES LAWS OR ANY CONDUCT BY SUCH INVESTOR WHICH CONSTITUTES FRAUD, GROSS
NEGLIGENCE, WILLFUL MISCONDUCT OR MALFEASANCE).
IF ANY ACTION SHALL BE BROUGHT
AGAINST ANY INVESTOR PARTY IN RESPECT OF WHICH INDEMNITY MAY BE SOUGHT PURSUANT
TO THIS AGREEMENT, SUCH INVESTOR PARTY SHALL PROMPTLY NOTIFY THE COMPANY IN
WRITING, AND THE COMPANY SHALL HAVE THE RIGHT TO ASSUME THE DEFENSE THEREOF WITH
COUNSEL OF ITS OWN CHOOSING.
ANY INVESTOR PARTY SHALL HAVE THE RIGHT TO EMPLOY
SEPARATE COUNSEL IN ANY SUCH ACTION AND PARTICIPATE IN THE DEFENSE THEREOF, BUT
THE FEES AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE EXPENSE OF SUCH INVESTOR
PARTY EXCEPT TO THE EXTENT THAT (I) THE EMPLOYMENT THEREOF HAS BEEN SPECIFICALLY
AUTHORIZED BY THE COMPANY IN WRITING, (II) THE COMPANY HAS FAILED AFTER A
REASONABLE PERIOD OF TIME FOLLOWING SUCH INVESTOR PARTY'S WRITTEN REQUEST THAT
IT DO SO, TO ASSUME SUCH DEFENSE AND TO EMPLOY COUNSEL OR (III) IN SUCH ACTION
THERE IS, IN THE REASONABLE OPINION OF SUCH SEPARATE COUNSEL, A MATERIAL
CONFLICT ON ANY MATERIAL ISSUE BETWEEN THE POSITION OF THE COMPANY AND THE
POSITION OF SUCH INVESTOR PARTY.
THE COMPANY WILL NOT BE LIABLE TO ANY INVESTOR
PARTY UNDER THIS AGREEMENT (I) FOR ANY SETTLEMENT BY AN INVESTOR PARTY EFFECTED
WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY
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WITHHELD OR DELAYED; OR (II) TO THE EXTENT, BUT ONLY TO THE EXTENT THAT A LOSS,
CLAIM, DAMAGE OR LIABILITY IS ATTRIBUTABLE TO SUCH INVESTOR PARTY'S WRONGFUL
ACTIONS OR OMISSIONS, OR GROSS NEGLIGENCE OR TO SUCH INVESTOR PARTY'S BREACH OF
ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS MADE BY SUCH
INVESTOR IN THIS AGREEMENT OR IN THE OTHER TRANSACTION DOCUMENTS.
5.
CONDITIONS TO CLOSING.
5.1
CONDITIONS TO INVESTORS' OBLIGATIONS AT THE CLOSING.
EACH
INVESTOR'S OBLIGATIONS TO EFFECT THE CLOSING, INCLUDING WITHOUT LIMITATION ITS
OBLIGATION TO PURCHASE SHARES AND WARRANTS AT CLOSING, ARE CONDITIONED UPON THE
FULFILLMENT (OR WAIVER BY SUCH INVESTOR IN ITS SOLE AND ABSOLUTE DISCRETION) OF
EACH OF THE FOLLOWING EVENTS AS OF THE CLOSING DATE:
5.1.1
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
SET FORTH IN THIS AGREEMENT AND IN THE OTHER TRANSACTION DOCUMENTS SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE CLOSING DATE AS IF MADE ON SUCH
DATE (EXCEPT THAT TO THE EXTENT THAT ANY SUCH REPRESENTATION OR WARRANTY RELATES
TO A PARTICULAR DATE, SUCH REPRESENTATION OR WARRANTY SHALL BE TRUE AND CORRECT
IN ALL MATERIAL RESPECTS AS OF THAT PARTICULAR DATE);
5.1.2
THE COMPANY SHALL HAVE COMPLIED WITH OR PERFORMED
IN ALL MATERIAL RESPECTS ALL OF THE AGREEMENTS, OBLIGATIONS AND CONDITIONS SET
FORTH IN THIS AGREEMENT AND IN THE OTHER TRANSACTION DOCUMENTS THAT ARE REQUIRED
TO BE COMPLIED WITH OR PERFORMED BY THE COMPANY ON OR BEFORE THE CLOSING;
5.1.3
THE CLOSING DATE SHALL OCCUR ON A DATE THAT IS NOT
LATER THAN OCTOBER 5, 2005;