WRITTEN CONSENT OF THE
INDEMNIFIED PARTY, SETTLE, COMPROMISE OR CONSENT TO THE ENTRY OF ANY JUDGMENT IN
ANY PENDING OR THREATENED CLAIM RELATING TO THE MATTERS CONTEMPLATED HEREBY (IF
ANY
26
INDEMNIFIED PARTY IS A PARTY THERETO OR HAS BEEN ACTUALLY THREATENED TO BE MADE
A PARTY THERETO) UNLESS SUCH SETTLEMENT, COMPROMISE OR CONSENT INCLUDES AN
UNCONDITIONAL RELEASE OF SUCH INDEMNIFIED PARTY FROM ALL LIABILITY ARISING OR
THAT MAY ARISE OUT OF SUCH CLAIM.
THE INDEMNIFYING PARTY SHALL NOT BE LIABLE
FOR ANY SETTLEMENT OF A CLAIM EFFECTED AGAINST AN INDEMNIFIED PARTY WITHOUT THE
INDEMNIFYING PARTY'S WRITTEN CONSENT, WHICH CONSENT SHALL NOT BE UNREASONABLY
WITHHELD, CONDITIONED OR DELAYED. THE RIGHTS ACCORDED TO AN INDEMNIFIED PARTY
HEREUNDER SHALL BE IN ADDITION TO ANY RIGHTS THAT ANY INDEMNIFIED PARTY MAY HAVE
AT COMMON LAW, BY SEPARATE AGREEMENT OR OTHERWISE; PROVIDED, HOWEVER, THAT
NOTWITHSTANDING THE FOREGOING OR ANYTHING TO THE CONTRARY CONTAINED IN THIS
AGREEMENT, NOTHING IN THIS ARTICLE IX SHALL RESTRICT OR LIMIT ANY RIGHTS THAT
ANY INDEMNIFIED PARTY MAY HAVE TO SEEK EQUITABLE RELIEF.
ARTICLE X
MISCELLANEOUS
SECTION 10.1
FEES AND EXPENSES.
(A)
EACH OF THE COMPANY AND THE INVESTOR AGREES TO PAY ITS OWN EXPENSES
INCIDENT TO THE PERFORMANCE OF ITS OBLIGATIONS HEREUNDER, EXCEPT THAT THE
COMPANY SHALL BE SOLELY RESPONSIBLE FOR (I) ALL REASONABLE ATTORNEYS FEES AND
EXPENSES INCURRED BY THE INVESTOR IN CONNECTION WITH THE PREPARATION,
NEGOTIATION, EXECUTION AND DELIVERY OF THIS AGREEMENT, THE REGISTRATION RIGHTS
AGREEMENT AND THE WARRANT, AND REVIEW OF THE REGISTRATION STATEMENT, AND IN
CONNECTION WITH ANY AMENDMENTS, MODIFICATIONS OR WAIVERS OF THIS AGREEMENT,
(II) SUBJECT IN ALL CASES TO SECTION 10.1(B) HEREOF, ALL REASONABLE FEES AND
EXPENSES INCURRED IN CONNECTION WITH THE INVESTOR'S ENFORCEMENT OF THIS
AGREEMENT, INCLUDING, WITHOUT LIMITATION, ALL REASONABLE ATTORNEYS FEES AND
EXPENSES, (III) DUE DILIGENCE EXPENSES INCURRED BY THE INVESTOR DURING THE TERM
OF THIS AGREEMENT EQUAL TO $15,000 PER CALENDAR QUARTER, AND (IV) ALL STAMP OR
OTHER SIMILAR TAXES AND DUTIES, IF ANY, LEVIED IN CONNECTION WITH ISSUANCE OF
THE SHARES PURSUANT HERETO; PROVIDED, HOWEVER, THAT IN EACH OF THE ABOVE
INSTANCES THE INVESTOR SHALL PROVIDE CUSTOMARY SUPPORTING INVOICES OR SIMILAR
DOCUMENTATION IN REASONABLE DETAIL DESCRIBING SUCH EXPENSES (HOWEVER, THE
INVESTOR SHALL NOT BE OBLIGATED TO PROVIDE DETAILED TIME SHEETS); AND PROVIDED
FURTHER, THAT THE MAXIMUM AGGREGATE AMOUNT PAYABLE BY THE COMPANY PURSUANT TO
CLAUSES (I) AND (II) ABOVE SHALL BE $70,000 AND THE INVESTOR SHALL BEAR ALL FEES
AND EXPENSES DESCRIBED IN CLAUSES (I) AND (II) ABOVE IN EXCESS OF $70,000.
(B)
IF ANY ACTION AT LAW OR IN EQUITY IS NECESSARY TO ENFORCE OR
INTERPRET THE TERMS OF THIS AGREEMENT, THE REGISTRATION RIGHTS AGREEMENT OR THE
WARRANT, THE PREVAILING PARTY SHALL BE ENTITLED TO REASONABLE FEES, COSTS AND
NECESSARY DISBURSEMENTS IN ADDITION TO ANY OTHER RELIEF TO WHICH SUCH PARTY MAY
BE ENTITLED.
SECTION 10.2
REPORTING ENTITY FOR THE COMMON STOCK.
THE REPORTING ENTITY
RELIED UPON FOR THE DETERMINATION OF THE TRADING PRICE OR TRADING VOLUME OF THE
COMMON STOCK ON ANY GIVEN TRADING DAY