WARRANTIES OR COVENANTS UNDER THE TRANSACTION DOCUMENTS OR ANY AGREEMENTS OR
UNDERSTANDINGS SUCH PURCHASER MAY HAVE WITH ANY SUCH STOCKHOLDER OR ANY
VIOLATIONS BY SUCH PURCHASER OF STATE OR FEDERAL SECURITIES LAWS OR ANY CONDUCT
BY SUCH PURCHASER WHICH CONSTITUTES FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT
OR MALFEASANCE).
IF ANY ACTION SHALL BE BROUGHT AGAINST ANY PURCHASER PARTY IN
RESPECT OF WHICH INDEMNITY MAY BE SOUGHT PURSUANT TO THIS AGREEMENT, SUCH
PURCHASER PARTY SHALL PROMPTLY NOTIFY THE COMPANY IN WRITING, AND THE COMPANY
SHALL HAVE THE RIGHT TO ASSUME THE DEFENSE THEREOF WITH COUNSEL OF ITS OWN
CHOOSING REASONABLY ACCEPTABLE TO THE PURCHASER PARTY.
ANY PURCHASER PARTY
SHALL HAVE THE RIGHT TO EMPLOY SEPARATE COUNSEL IN ANY SUCH ACTION AND
PARTICIPATE IN THE DEFENSE THEREOF, BUT THE FEES
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AND EXPENSES OF SUCH COUNSEL SHALL BE AT THE EXPENSE OF SUCH PURCHASER PARTY
EXCEPT TO THE EXTENT THAT (I) THE EMPLOYMENT THEREOF HAS BEEN SPECIFICALLY
AUTHORIZED BY THE COMPANY IN WRITING, (II) THE COMPANY HAS FAILED AFTER A
REASONABLE PERIOD OF TIME TO ASSUME SUCH DEFENSE AND TO EMPLOY COUNSEL OR
(III) IN SUCH ACTION THERE IS, IN THE REASONABLE OPINION OF COUNSEL, A MATERIAL
CONFLICT ON ANY MATERIAL ISSUE BETWEEN THE POSITION OF THE COMPANY AND THE
POSITION OF SUCH PURCHASER PARTY, IN 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
(Y) FOR ANY SETTLEMENT BY A PURCHASER PARTY EFFECTED WITHOUT THE COMPANY'S PRIOR
WRITTEN CONSENT, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED; OR (Z) 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. THE INDEMNIFICATION REQUIRED BY
THIS SECTION 4.8 SHALL BE MADE BY PERIODIC PAYMENTS OF THE AMOUNT THEREOF DURING
THE COURSE OF THE INVESTIGATION OR DEFENSE, AS AND WHEN BILLS ARE RECEIVED OR
ARE INCURRED. THE INDEMNITY AGREEMENTS CONTAINED HEREIN SHALL BE IN ADDITION TO
ANY CAUSE OF ACTION OR SIMILAR RIGHT OF ANY PURCHASER PARTY AGAINST THE COMPANY
OR OTHERS, AND (Y) ANY LIABILITIES THE COMPANY MAY BE SUBJECT TO PURSUANT TO
LAW.
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 OR QUOTATION OF THE COMMON STOCK ON THE TRADING
MARKET ON WHICH IT IS CURRENTLY LISTED, AND CONCURRENTLY WITH THE CLOSING, THE
COMPANY SHALL APPLY TO LIST OR QUOTE