NO
BUYER SHALL BE ENTITLED TO INDEMNIFICATION TO THE EXTENT ANY OF THE FOREGOING IS
CAUSED BY ITS 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 WHICH IS PERMISSIBLE UNDER APPLICABLE LAW.
EXCEPT AS OTHERWISE SET FORTH HEREIN, THE MECHANICS AND PROCEDURES WITH RESPECT
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 AFFILIATE OF A BUYER THAT HOLDS
PREFERRED SHARES OR WARRANTS 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
31
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)
RESCISSION AND WITHDRAWAL RIGHT. NOTWITHSTANDING ANYTHING TO THE
CONTRARY CONTAINED IN (AND WITHOUT LIMITING ANY SIMILAR PROVISIONS OF) THE
TRANSACTION DOCUMENTS, WHENEVER ANY BUYER EXERCISES A RIGHT, ELECTION, DEMAND OR
OPTION UNDER A TRANSACTION DOCUMENT AND THE COMPANY DOES NOT TIMELY PERFORM ITS
RELATED OBLIGATIONS WITHIN THE PERIODS THEREIN PROVIDED, THEN SUCH BUYER MAY
RESCIND OR WITHDRAW, IN ITS SOLE DISCRETION FROM TIME TO TIME UPON WRITTEN
NOTICE TO THE COMPANY, ANY RELEVANT NOTICE, DEMAND OR ELECTION IN WHOLE OR IN
PART WITHOUT PREJUDICE TO ITS FUTURE ACTIONS AND RIGHTS
(O)
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 BE REFUNDED, REPAID OR OTHERWISE RESTORED TO THE COMPANY, A