OFFICERS OR
DIRECTORS IN THEIR CAPACITIES AS SUCH, BEFORE OR BY ANY FEDERAL, STATE OR LOCAL
COURT, COMMISSION, REGULATORY BODY, ADMINISTRATIVE AGENCY OR OTHER GOVERNMENTAL
BODY, DOMESTIC OR FOREIGN, WHICH LITIGATION OR PROCEEDING, IN THE REASONABLE
JUDGMENT OF THE PLACEMENT AGENT, COULD HAVE A MATERIAL ADVERSE EFFECT.
(D)
EACH OF THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY
CONTAINED HEREIN SHALL BE TRUE AND CORRECT IN ALL MATERIAL RESPECTS AT THE
CLOSING DATE, AS IF MADE ON SUCH DATE, AND ALL COVENANTS AND AGREEMENTS HEREIN
CONTAINED TO BE PERFORMED ON THE PART OF THE COMPANY AND ALL CONDITIONS HEREIN
CONTAINED TO BE FULFILLED OR COMPLIED WITH BY THE COMPANY AT OR PRIOR TO THE
CLOSING DATE SHALL HAVE BEEN DULY PERFORMED, FULFILLED OR COMPLIED WITH IN ALL
MATERIAL RESPECTS.
13
(E)
THE PLACEMENT AGENT SHALL HAVE RECEIVED AN OPINION, DATED THE
CLOSING DATE (OR SUCH OTHER DATE AS MAY BE SET FORTH IN A REPRESENTATION OR
WARRANTY), OF BRACEWELL & GIULIANI LLP, AS COUNSEL TO THE COMPANY, IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO THE PLACEMENT AGENT.
(F)
THE SHARES SHALL BE QUALIFIED FOR SALE IN SUCH STATES AS THE
PLACEMENT AGENT MAY REASONABLY REQUEST, AND EACH SUCH QUALIFICATION SHALL BE IN
EFFECT AND NOT SUBJECT TO ANY STOP ORDER OR OTHER PROCEEDING ON THE CLOSING
DATE, AS PROVIDED IN SECTIONS 3(B) AND 3(Y) ABOVE.
(G)
THE COMPANY SHALL HAVE FURNISHED OR CAUSED TO BE FURNISHED TO THE
PLACEMENT AGENT SUCH CERTIFICATES, IN ADDITION TO THOSE SPECIFICALLY MENTIONED
HEREIN, AS THE PLACEMENT AGENT MAY HAVE REASONABLY REQUESTED AS TO THE ACCURACY
AND COMPLETENESS AT THE CLOSING DATE OF ANY STATEMENT IN THE REGISTRATION
STATEMENT OR THE PROSPECTUS, AS TO THE ACCURACY AT THE CLOSING DATE OF THE
REPRESENTATIONS AND WARRANTIES OF THE COMPANY AS TO THE PERFORMANCE BY THE
COMPANY OF ITS OBLIGATIONS HEREUNDER, OR AS TO THE FULFILLMENT OF THE CONDITIONS
CONCURRENT AND PRECEDENT TO THE OBLIGATIONS HEREUNDER OF THE PLACEMENT AGENT.
8.
INDEMNIFICATION.
(A)
THE COMPANY SHALL INDEMNIFY AND HOLD HARMLESS THE PLACEMENT AGENT,
ITS DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS AND EACH PERSON, IF ANY, WHO
CONTROLS THE PLACEMENT AGENT WITHIN THE MEANING OF SECTION 15 OF THE ACT OR
SECTION 20 OF THE EXCHANGE ACT, FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS,
LIABILITIES, EXPENSES AND DAMAGES, JOINT OR SEVERAL, (INCLUDING ANY AND ALL
INVESTIGATIVE, LEGAL AND OTHER EXPENSES REASONABLY INCURRED IN CONNECTION WITH,
AND ANY AMOUNT PAID IN SETTLEMENT OF, ANY ACTION, SUIT OR PROCEEDING OR ANY
CLAIM ASSERTED), TO WHICH IT, OR ANY OF THEM, MAY BECOME SUBJECT UNDER THE ACT
OR OTHER FEDERAL OR STATE STATUTORY LAW OR REGULATION, AT COMMON LAW OR
OTHERWISE, INSOFAR AS SUCH LOSSES, CLAIMS, LIABILITIES, EXPENSES OR DAMAGES
ARISE OUT OF OR ARE BASED ON (I) ANY UNTRUE STATEMENT OR ALLEGED UNTRUE
STATEMENT MADE BY THE COMPANY IN SECTION 3 OF THIS AGREEMENT, (II) ANY UNTRUE
STATEMENT OR ALLEGED UNTRUE STATEMENT OF ANY MATERIAL FACT CONTAINED IN (A) ANY
PRELIMINARY PROSPECTUS, THE REGISTRATION STATEMENT OR THE PROSPECTUS OR ANY