WHICH CASE THE
COMPANY SHALL BE RESPONSIBLE FOR THE REASONABLE FEES AND EXPENSES OF NO MORE
THAN ONE SUCH SEPARATE COUNSEL.
THE COMPANY WILL NOT BE LIABLE TO ANY PURCHASER
PARTY UNDER THIS AGREEMENT (I) FOR ANY SETTLEMENT BY A PURCHASER PARTY EFFECTED
WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY
WITHHELD OR DELAYED; OR (II) TO THE EXTENT, BUT ONLY TO THE EXTENT THAT A LOSS,
CLAIM, DAMAGE OR LIABILITY IS ATTRIBUTABLE TO ANY PURCHASER PARTY'S BREACH OF
ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS OR AGREEMENTS MADE BY SUCH
PURCHASER PARTY IN THIS AGREEMENT OR IN THE OTHER TRANSACTION DOCUMENTS OR ANY
AGREEMENTS OR UNDERSTANDINGS SUCH PURCHASER MAY HAVE WITH ANY SUCH STOCKHOLDER
OR ANY VIOLATIONS BY THE PURCHASER OF STATE OR FEDERAL SECURITIES LAWS OR ANY
CONDUCT BY SUCH PURCHASER WHICH CONSTITUTES FRAUD, GROSS NEGLIGENCE, WILLFUL
MISCONDUCT OR MALFEASANCE.
4.9
RESERVATION OF COMMON STOCK. AS OF THE DATE HEREOF, THE COMPANY
HAS RESERVED AND THE COMPANY SHALL CONTINUE TO RESERVE AND KEEP AVAILABLE AT ALL
TIMES, FREE OF PREEMPTIVE RIGHTS, A SUFFICIENT NUMBER OF SHARES OF COMMON STOCK
FOR THE PURPOSE OF ENABLING THE COMPANY TO ISSUE SHARES PURSUANT TO THIS
AGREEMENT AND WARRANT SHARES PURSUANT TO ANY EXERCISE OF THE WARRANTS.
4.10
LISTING OF COMMON STOCK.
THE COMPANY HEREBY AGREES TO USE BEST
EFFORTS TO MAINTAIN THE LISTING OF THE COMMON STOCK ON A TRADING MARKET, AND AS
SOON AS REASONABLY PRACTICABLE FOLLOWING THE CLOSING (BUT NOT LATER THAN THE
EARLIER OF THE EFFECTIVE DATE AND THE FIRST ANNIVERSARY OF THE CLOSING DATE) TO
LIST ALL OF THE SHARES AND WARRANT SHARES ON SUCH TRADING MARKET. THE COMPANY
FURTHER AGREES, IF THE COMPANY APPLIES TO HAVE THE COMMON STOCK TRADED ON ANY
OTHER TRADING MARKET, IT WILL INCLUDE IN SUCH APPLICATION ALL OF THE SHARES AND
WARRANT SHARES, AND WILL TAKE SUCH OTHER ACTION AS IS REASONABLY NECESSARY TO
CAUSE ALL OF THE SHARES AND WARRANT SHARES TO BE LISTED ON SUCH OTHER TRADING
MARKET AS PROMPTLY AS POSSIBLE.
THE COMPANY WILL TAKE ALL ACTION REASONABLY
NECESSARY TO CONTINUE THE LISTING AND TRADING OF ITS COMMON STOCK ON A TRADING
MARKET AND WILL COMPLY IN ALL RESPECTS WITH THE COMPANY'S REPORTING, FILING AND
OTHER OBLIGATIONS UNDER THE BYLAWS OR RULES OF THE TRADING MARKET.
4.11
EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION SHALL BE OFFERED
OR PAID TO ANY PERSON TO AMEND OR CONSENT TO A WAIVER OR MODIFICATION OF ANY
PROVISION OF ANY OF THE TRANSACTION DOCUMENTS UNLESS THE SAME CONSIDERATION IS
ALSO OFFERED TO ALL OF THE PARTIES TO THE TRANSACTION DOCUMENTS.
FOR
CLARIFICATION PURPOSES, THIS PROVISION CONSTITUTES A SEPARATE RIGHT GRANTED TO
EACH PURCHASER BY THE COMPANY AND NEGOTIATED SEPARATELY BY EACH PURCHASER, AND
IS INTENDED FOR THE COMPANY TO TREAT THE PURCHASERS AS A CLASS AND SHALL NOT IN
ANY WAY BE CONSTRUED AS THE PURCHASERS ACTING IN CONCERT OR AS A GROUP WITH
RESPECT TO THE PURCHASE, DISPOSITION OR VOTING OF SECURITIES OR OTHERWISE. THE
PROVISIONS OF THIS SECTION 4.11