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 THE PURCHASERS IN THIS AGREEMENT OR IN THE OTHER TRANSACTION DOCUMENTS.
4.12
RESERVATION AND LISTING OF SHARES.
(A)
THE COMPANY HEREBY AGREES TO USE BEST
EFFORTS TO MAINTAIN THE LISTING OF
23
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 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 WILL TAKE SUCH OTHER ACTION AS IS NECESSARY
TO CAUSE ALL OF THE 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.
4.13
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. FURTHER, THE COMPANY SHALL NOT MAKE ANY PAYMENT OF PRINCIPAL OR
INTEREST ON THE DEBENTURES IN AMOUNTS WHICH ARE DISPROPORTIONATE TO THE
RESPECTIVE PRINCIPAL AMOUNTS OUTSTANDING ON THE DEBENTURES AT ANY APPLICABLE
TIME.
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 SHARES OR
OTHERWISE.
4.14
SHORT SALES AND CONFIDENTIALITY AFTER THE DATE
HEREOF. EACH PURCHASER SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS
COVENANTS THAT NEITHER IT NOR ANY AFFILIATES ACTING ON ITS BEHALF OR PURSUANT TO
ANY UNDERSTANDING WITH IT WILL EXECUTE ANY SHORT SALES DURING THE PERIOD AFTER
THE DISCUSSION TIME AND ENDING AT THE TIME THAT THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT ARE FIRST PUBLICLY ANNOUNCED AS DESCRIBED IN SECTION 4.6.
EACH
PURCHASER, SEVERALLY AND NOT JOINTLY WITH THE OTHER PURCHASERS, COVENANTS THAT
UNTIL SUCH TIME AS THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT ARE PUBLICLY
DISCLOSED BY THE COMPANY AS DESCRIBED IN SECTION 4.6, SUCH PURCHASER WILL
MAINTAIN, THE CONFIDENTIALITY OF ALL DISCLOSURES MADE