BE
UNREASONABLY WITHHELD OR DELAYED; PROVIDED, HOWEVER, THAT SUCH CONSENT SHALL NOT
BE REQUIRED IF THE SETTLEMENT INCLUDES A FULL AND UNCONDITIONAL RELEASE
SATISFACTORY TO THE PURCHASER PARTY FROM ALL LIABILITY ARISING OR THAT MAY ARISE
OUT OF SUCH CLAIM OR PROCEEDING AND DOES NOT INCLUDE A STATEMENT AS TO OR AN
ADMISSION OF FAULT, CULPABILITY OR A FAILURE TO ACT BY OR ON BEHALF OF ANY
PURCHASER PARTY.
22
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
REASONABLE 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 ALL OF THE SHARES AND WARRANT
SHARES ON SUCH TRADING MARKET AND PROMPTLY SECURE THE LISTING OF 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 THEN INCLUDE IN SUCH APPLICATION ALL OF THE SHARES AND WARRANT SHARES,
AND WILL TAKE SUCH OTHER ACTION AS IS NECESSARY TO CAUSE ALL OF THE SHARES AND
WARRANT SHARES TO BE LISTED OR QUOTED ON SUCH OTHER TRADING MARKET AS PROMPTLY
AS POSSIBLE.
THE COMPANY WILL USE ITS REASONABLE BEST EFFORTS TO CONTINUE THE
LISTING AND TRADING OF ITS COMMON STOCK ON A TRADING MARKET AND WILL COMPLY IN
ALL MATERIAL RESPECTS WITH THE COMPANY'S REPORTING, FILING AND OTHER OBLIGATIONS
UNDER THE BYLAWS OR RULES OF THE TRADING MARKET.
4.11
[RESERVED]
4.12
SUBSEQUENT EQUITY SALES.
FROM THE DATE HEREOF UNTIL 30 DAYS
AFTER THE CLOSING DATE, THE COMPANY SHALL NOT ISSUE, ENTER INTO ANY AGREEMENT TO
ISSUE OR ANNOUNCE THE ISSUANCE OR PROPOSED ISSUANCE OF ANY SHARES OF COMMON
STOCK OR COMMON STOCK EQUIVALENTS. NOTWITHSTANDING THE FOREGOING, THIS SECTION
4.12 SHALL NOT APPLY IN RESPECT OF AN EXEMPT ISSUANCE.
4.13
EQUAL TREATMENT OF PURCHASERS.
NO CONSIDERATION (INCLUDING
ANY MODIFICATION OF ANY TRANSACTION DOCUMENT) 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