(VI)
THE INDEMNITY PROVIDED FOR IN THIS
SECTION 9(C) SHALL BE THE SOLE AND EXCLUSIVE REMEDY OF THE INDEMNIFIED PARTIES
AFTER THE CLOSING FOR ANY INACCURACY OF ANY REPRESENTATION OR WARRANTY OR ANY
OTHER BREACH OF ANY COVENANT OR AGREEMENT CONTAINED IN THIS AGREEMENT; PROVIDED
THAT NOTHING HEREIN SHALL LIMIT IN ANY WAY ANY SUCH PARTY'S REMEDIES IN RESPECT
OF FRAUD BY ANY OTHER PARTY IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED
HEREBY. NO PARTY TO THIS AGREEMENT (OR ANY OF ITS AFFILIATES) SHALL, IN ANY
EVENT, BE LIABLE OR OTHERWISE RESPONSIBLE TO ANY OTHER PARTY (OR ANY OF ITS
AFFILIATES) FOR ANY CONSEQUENTIAL OR PUNITIVE DAMAGES OF SUCH OTHER PARTY (OR
ANY OF ITS AFFILIATES) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE
PERFORMANCE OR BREACH HEREOF.
(VII)
ANY INDEMNIFICATION PAYMENTS PURSUANT TO THIS
SECTION 9(C) SHALL BE TREATED AS AN ADJUSTMENT TO THE PURCHASE PRICE FOR THE
CONVERTIBLE PREFERRED STOCK FOR U.S. FEDERAL INCOME AND APPLICABLE STATE AND
LOCAL TAX PURPOSES, UNLESS A DIFFERENT TREATMENT IS REQUIRED BY APPLICABLE LAW.
(D)
EXCHANGE LISTING.
THE COMPANY SHALL
PROMPTLY USE ITS REASONABLE BEST EFFORTS TO CAUSE THE SHARES OF COMMON STOCK
RESERVED FOR ISSUANCE PURSUANT TO THE CONVERSION OF THE SHARES OF THE
CONVERTIBLE PREFERRED STOCK TO BE APPROVED FOR LISTING ON THE NASDAQ STOCK
MARKET OR OTHER NATIONAL SECURITIES EXCHANGE THAT, AT SUCH TIME, IS THE
COMPANY'S PRIMARY LISTING EXCHANGE AS PROMPTLY AS PRACTICABLE.
(E)
STOCKHOLDER MEETING.
THE COMPANY SHALL
CALL A SPECIAL MEETING OF ITS STOCKHOLDERS, AS PROMPTLY AS REASONABLY
PRACTICABLE FOLLOWING THE DATE HEREOF, TO APPROVE (I) THE CONVERSION OF THE
SHARES OF THE CONVERTIBLE PREFERRED STOCK AND THE SERIES B PREFERRED STOCK,
SUBJECT TO THE LIMITATIONS SET FORTH BELOW, INTO COMMON STOCK AT THE CONVERSION
PRICE, INCLUDING ANY ADJUSTMENTS THERETO, PURSUANT TO THE TERMS SPECIFIED IN THE
CERTIFICATE OF DESIGNATIONS; AND (II) AN AMENDMENT TO THE CERTIFICATE OF
INCORPORATION AUTHORIZING THE CREATION OF A SEPARATE SERIES OR CLASS OF COMMON
STOCK IDENTICAL IN ALL RESPECTS TO THE COMMON STOCK PROVIDED THAT SUCH SERIES OR
CLASS SHALL EXPRESSLY STATE THAT IT HAS NO VOTING RIGHTS AND FOR CONVERSION OF
SUCH SHARES OF NON-VOTING COMMON STOCK INTO SHARES OF COMMON STOCK UPON TRANSFER
TO ANY PERSON OTHER THAN CASTLE CREEK, PATRIOT OR RELATIONAL OR ONE OF THEIR
RESPECTIVE AFFILIATES ON A SHARE FOR SHARE BASIS (SUBJECT TO CUSTOMARY
ANTI-DILUTION ADJUSTMENTS) (SUCH APPROVALS COLLECTIVELY, THE "STOCKHOLDER
APPROVAL").
THE BOARD OF DIRECTORS, TO THE EXTENT IT IS CONSISTENT WITH THEIR
FIDUCIARY DUTIES, SHALL RECOMMEND TO THE COMPANY'S STOCKHOLDERS THAT SUCH
STOCKHOLDERS VOTE IN FAVOR OF THE PROPOSALS REQUIRED BY THIS SECTION 9(E).
IN
CONNECTION WITH SUCH MEETING, THE COMPANY SHALL PROMPTLY, BUT IN ANY EVENT NO
LATER THAN 30 DAYS AFTER THE DATE HEREOF, PREPARE AND FILE WITH THE COMMISSION A
PRELIMINARY PROXY STATEMENT, SHALL USE ITS REASONABLE BEST EFFORTS TO RESPOND TO
ANY COMMENTS OF THE COMMISSION OR ITS STAFF AND TO CAUSE A DEFINITIVE PROXY
STATEMENT RELATED TO SUCH STOCKHOLDERS' MEETING TO BE MAILED TO THE