WARRANT SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS
(WITHOUT REGARD TO ANY LIMITATION ON SUCH CONVERSION OR EXERCISE) FOR LISTING ON
THE NASDAQ NATIONAL MARKET, AND (II) SHALL USE ITS REASONABLE BEST EFFORTS TO
MAINTAIN THE DESIGNATION AND QUOTATION, OR LISTING, OF THE COMMON STOCK ON THE
NASDAQ NATIONAL MARKET OR THE NEW YORK STOCK EXCHANGE FOR A MINIMUM OF FIVE
(5) YEARS AND SIX (6) MONTHS FOLLOWING THE CLOSING DATE.
20
4.11
RESTRICTION ON ISSUANCES.
DURING THE PERIOD
BEGINNING ON THE EXECUTION DATE AND ENDING ON THE DATE THAT IS NINETY (90) DAYS
AFTER THE EFFECTIVE DATE, THE COMPANY WILL NOT, DIRECTLY OR INDIRECTLY, EFFECT A
SUBSEQUENT PLACEMENT.
4.12
LIMITATION ON ISSUANCE OF WARRANT SHARES.
EACH
INVESTOR ACKNOWLEDGES AND AGREES THAT THE AGGREGATE NUMBER OF SHARES OF COMMON
STOCK THAT MAY BE ISSUED BY THE COMPANY PURSUANT TO THIS AGREEMENT AND THE
WARRANTS MAY NOT AT ANY TIME EXCEED THE CAP AMOUNT AND THAT THE COMPANY SHALL
HAVE NO OBLIGATION TO ISSUE SHARES OF COMMON STOCK PURSUANT TO THIS AGREEMENT
AND THE WARRANTS IN EXCESS OF THE CAP AMOUNT.
IN FURTHERANCE OF THE LIMITATION
SET FORTH IN THE IMMEDIATELY PRECEDING SENTENCE, AT ANY TIME FOLLOWING THE
CLOSING DATE, THE NUMBER OF WARRANT SHARES THAT SUCH INVESTOR MAY RECEIVE UPON
THE EXERCISE OF EITHER ITS SERIES A WARRANT OR SERIES B WARRANT, WHEN ADDED TO
(I) THE NUMBER OF SHARES OF COMMON STOCK PURCHASED BY SUCH INVESTOR PURSUANT TO
THIS AGREEMENT PLUS (II) THE NUMBER OF WARRANT SHARES PREVIOUSLY RECEIVED BY
SUCH ISSUER UPON EXERCISE OF ITS SERIES A WARRANT PLUS (III) THE NUMBER OF
SHARES OF COMMON STOCK PREVIOUSLY RECEIVED BY SUCH INVESTOR UPON EXERCISE OF ITS
SERIES B WARRANT, MAY NOT EXCEED THE PRODUCT OF (A) THE CAP AMOUNT AND (B) SUCH
HOLDER'S PRO RATA SHARE (SUCH PRODUCT, THE "ALLOCATION AMOUNT"), NOTWITHSTANDING
ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR THE WARRANTS (INCLUDING, WITHOUT
LIMITATION, ANY ADJUSTMENT OF THE EXERCISE PRICE OF THE SERIES A WARRANT
PURSUANT TO SECTION 6(C) OF THE SERIES A WARRANTS).
4.13
INDEMNIFICATION OF INVESTORS.
THE COMPANY WILL
INDEMNIFY AND HOLD EACH INVESTOR AND ITS DIRECTORS, MANAGERS, OFFICERS,
SHAREHOLDERS, MEMBERS, PARTNERS, EMPLOYEES AND AGENTS (EACH, AN "INVESTOR
PARTY") HARMLESS FROM ANY AND ALL LOSSES, LIABILITIES, OBLIGATIONS, CLAIMS,
CONTINGENCIES, DAMAGES, COSTS AND EXPENSES, INCLUDING ALL JUDGMENTS, AMOUNTS
PAID IN SETTLEMENTS, COURT COSTS AND REASONABLE ATTORNEYS' FEES AND COSTS OF
INVESTIGATION THAT ANY SUCH INVESTOR PARTY MAY SUFFER OR INCUR AS A RESULT OF OR
RELATING TO (A) ANY BREACH OF ANY OF THE REPRESENTATIONS, WARRANTIES, COVENANTS
OR AGREEMENTS MADE BY THE COMPANY IN THIS AGREEMENT OR IN THE OTHER TRANSACTION
DOCUMENTS OR (B) ANY ACTION INSTITUTED AGAINST AN INVESTOR, OR ANY OF THEM OR
THEIR RESPECTIVE AFFILIATES, BY ANY SHAREHOLDER OF THE COMPANY WHO IS NOT AN
AFFILIATE OF SUCH INVESTOR, WITH RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED
BY THE TRANSACTION DOCUMENTS (UNLESS SUCH ACTION IS BASED UPON A BREACH OF SUCH
INVESTOR'S REPRESENTATION, WARRANTIES OR COVENANTS UNDER THE TRANSACTION
DOCUMENTS OR ANY