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 (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 SUCH PURCHASER PARTY IN THIS AGREEMENT OR IN THE OTHER
TRANSACTION DOCUMENTS.
4.11
RESERVATION AND LISTING OF SECURITIES.
(A)
THE COMPANY SHALL MAINTAIN A RESERVE FROM ITS DULY AUTHORIZED
SHARES OF COMMON STOCK FOR ISSUANCE PURSUANT TO THE TRANSACTION DOCUMENTS IN
SUCH AMOUNT AS MAY BE REQUIRED TO FULFILL ITS OBLIGATIONS IN FULL UNDER THE
TRANSACTION DOCUMENTS.
(B)
IF, ON ANY DATE, THE NUMBER OF AUTHORIZED BUT UNISSUED (AND
OTHERWISE UNRESERVED) SHARES OF COMMON STOCK IS LESS THAN THE REQUIRED MINIMUM
ON SUCH DATE, THEN THE BOARD OF DIRECTORS SHALL USE COMMERCIALLY REASONABLE
EFFORTS TO AMEND THE COMPANY'S CERTIFICATE OR ARTICLES OF INCORPORATION TO
INCREASE THE NUMBER OF AUTHORIZED BUT UNISSUED SHARES OF COMMON STOCK TO AT
LEAST THE REQUIRED MINIMUM AT SUCH TIME, AS SOON AS POSSIBLE AND IN ANY EVENT
NOT LATER THAN THE 75TH DAY AFTER SUCH DATE.
(C)
THE COMPANY SHALL, IF APPLICABLE: (I) IN THE TIME AND MANNER
REQUIRED BY THE PRINCIPAL TRADING MARKET, PREPARE AND FILE WITH SUCH TRADING
MARKET AN ADDITIONAL SHARES LISTING APPLICATION COVERING A NUMBER OF SHARES OF
COMMON STOCK AT LEAST EQUAL TO THE REQUIRED MINIMUM ON THE DATE OF SUCH
APPLICATION, (II) TAKE ALL STEPS NECESSARY TO CAUSE SUCH SHARES OF COMMON STOCK
TO BE APPROVED FOR LISTING ON SUCH TRADING MARKET AS SOON AS POSSIBLE
THEREAFTER, (III) PROVIDE TO THE PURCHASERS EVIDENCE OF SUCH LISTING, AND (IV)
MAINTAIN THE LISTING OF SUCH COMMON STOCK ON ANY DATE AT LEAST EQUAL TO THE
REQUIRED MINIMUM ON SUCH DATE ON SUCH TRADING MARKET OR ANOTHER TRADING MARKET.
4.12
[RESERVED]
4.13
SUBSEQUENT EQUITY SALES.
(A)
FROM THE DATE HEREOF UNTIL 45 DAYS AFTER THE EFFECTIVE DATE,
NEITHER THE COMPANY NOR ANY SUBSIDIARY SHALL ISSUE (OR ENTER INTO ANY AGREEMENT,
DISCUSSIONS OR
27
LETTER OF INTENT TO ISSUE) SHARES OF COMMON STOCK OR COMMON STOCK EQUIVALENTS;
PROVIDED, HOWEVER, THE 45 DAY PERIOD SET FORTH IN THIS SECTION 4.13 SHALL BE
EXTENDED FOR THE NUMBER OF TRADING DAYS DURING SUCH PERIOD IN WHICH (I) TRADING
IN THE COMMON STOCK IS SUSPENDED BY ANY TRADING MARKET, OR (II) FOLLOWING THE
EFFECTIVE DATE, THE REGISTRATION STATEMENT IS NOT EFFECTIVE OR THE PROSPECTUS
INCLUDED IN THE REGISTRATION STATEMENT MAY NOT BE USED BY THE PURCHASERS FOR THE
RESALE OF THE UNDERLYING SHARES.
(B)
FROM THE DATE HEREOF UNTIL THE EARLIER OF (X) THE DATE THE
DEBENTURES ARE NO LONGER OUTSTANDING OR (Y) THE 12 MONTH ANNIVERSARY OF THE
EFFECTIVE DATE, THE COMPANY SHALL BE PROHIBITED FROM EFFECTING OR ENTERING INTO