THE COMPANY IN
THIS AGREEMENT OR IN THE OTHER TRANSACTION DOCUMENTS OR (B) ANY ACTION
INSTITUTED AGAINST A PURCHASER, OR ANY OF THEM OR THEIR RESPECTIVE AFFILIATES,
BY ANY STOCKHOLDER OF THE COMPANY WHO IS NOT AN AFFILIATE OF
25
SUCH PURCHASER, WITH RESPECT TO ANY OF THE TRANSACTIONS CONTEMPLATED BY THE
TRANSACTION DOCUMENTS (UNLESS SUCH ACTION IS BASED UPON A BREACH OF SUCH
PURCHASER'S REPRESENTATIONS, WARRANTIES OR COVENANTS UNDER THE TRANSACTION
DOCUMENTS OR ANY AGREEMENTS OR UNDERSTANDINGS SUCH PURCHASER MAY HAVE WITH ANY
SUCH STOCKHOLDER OR ANY VIOLATIONS BY THE 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 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 SUCH SEPARATE 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 (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.
4.10
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.
4.11
LISTING OF COMMON STOCK.
THE COMPANY HEREBY
AGREES TO USE GOOD FAITH COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE LISTING
OR QUOTATION OF THE COMMON STOCK ON A TRADING MARKET, AND AS SOON AS REASONABLY
PRACTICABLE FOLLOWING THE CLOSING (BUT NOT LATER THAN THE EARLIER OF THE
EFFECTIVE DATE AND THE FIRST