RELATED PERSON FOR
ITS REASONABLE LEGAL AND OTHER EXPENSES (INCLUDING THE COSTS OF ANY
INVESTIGATION, PREPARATION AND TRAVEL) AND FOR ANY LOSSES INCURRED IN CONNECTION
THEREWITH, AS SUCH EXPENSES OR LOSSES ARE INCURRED, EXCLUDING ONLY LOSSES THAT
RESULT DIRECTLY FROM SUCH PURCHASER'S OR RELATED PERSON'S GROSS NEGLIGENCE OR
WILLFUL MISCONDUCT.
IN ADDITION, THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS
EACH PURCHASER AND RELATED PERSON FROM AND AGAINST ANY AND ALL LOSSES, AS
INCURRED, ARISING OUT OF OR RELATING TO ANY BREACH BY THE COMPANY OF ANY OF THE
REPRESENTATIONS, WARRANTIES OR COVENANTS MADE BY THE COMPANY IN THIS AGREEMENT
OR ANY OTHER TRANSACTION DOCUMENT, OR ANY ALLEGATION BY A THIRD PARTY THAT, IF
TRUE, WOULD CONSTITUTE SUCH A BREACH.
THE CONDUCT OF ANY PROCEEDINGS FOR WHICH
INDEMNIFICATION IS AVAILABLE UNDER THIS PARAGRAPH SHALL BE GOVERNED BY
SECTION 6.4(C) BELOW.
THE INDEMNIFICATION OBLIGATIONS OF THE COMPANY UNDER THIS
PARAGRAPH SHALL BE IN ADDITION TO ANY LIABILITY THAT THE COMPANY MAY OTHERWISE
HAVE AND SHALL BE BINDING UPON AND INURE TO THE BENEFIT OF ANY SUCCESSORS,
ASSIGNS, HEIRS AND PERSONAL REPRESENTATIVES OF THE
18
PURCHASERS AND ANY SUCH RELATED PERSONS.
THE COMPANY ALSO AGREES THAT NEITHER
THE PURCHASERS NOR ANY RELATED PERSONS SHALL HAVE ANY LIABILITY TO THE COMPANY
OR ANY PERSON ASSERTING CLAIMS ON BEHALF OF OR IN RIGHT OF THE COMPANY IN
CONNECTION WITH OR AS A RESULT OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS, EXCEPT TO THE EXTENT THAT ANY LOSSES INCURRED BY THE
COMPANY RESULT FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF THE APPLICABLE
PURCHASER OR RELATED PERSON IN CONNECTION WITH SUCH TRANSACTIONS.
IF THE
COMPANY BREACHES ITS OBLIGATIONS UNDER ANY TRANSACTION DOCUMENT, THEN, IN
ADDITION TO ANY OTHER LIABILITIES THE COMPANY MAY HAVE UNDER ANY TRANSACTION
DOCUMENT OR APPLICABLE LAW, THE COMPANY SHALL PAY OR REIMBURSE THE PURCHASERS ON
DEMAND FOR ALL COSTS OF COLLECTION AND ENFORCEMENT (INCLUDING REASONABLE
ATTORNEYS FEES AND EXPENSES).
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING,
THE COMPANY SPECIFICALLY AGREES TO REIMBURSE THE PURCHASERS ON DEMAND FOR ALL
COSTS OF ENFORCING THE INDEMNIFICATION OBLIGATIONS IN THIS PARAGRAPH.
ARTICLE V
CONDITIONS
5.1
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PURCHASERS.
THE
OBLIGATION OF EACH PURCHASER TO ACQUIRE SECURITIES AT THE CLOSING IS SUBJECT TO
THE SATISFACTION OR WAIVER BY SUCH PURCHASER, AT OR BEFORE THE CLOSING, OF EACH
OF THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE REPRESENTATIONS AND
WARRANTIES OF THE COMPANY CONTAINED HEREIN SHALL BE TRUE AND CORRECT IN ALL
MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE CLOSING AS THOUGH MADE
ON AND AS OF SUCH DATE; AND
(B)
PERFORMANCE.
THE COMPANY AND EACH OTHER PURCHASER SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED,
SATISFIED OR COMPLIED WITH BY IT AT OR PRIOR TO THE CLOSING.
5.2
CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE COMPANY.
THE
OBLIGATION OF THE COMPANY TO SELL SECURITIES AT THE CLOSING IS SUBJECT