PURCHASER PARTY EXCEPT TO THE EXTENT
THAT (X) THE EMPLOYMENT THEREOF HAS BEEN SPECIFICALLY AUTHORIZED BY THE COMPANY
IN WRITING, (Y) THE COMPANY HAS FAILED AFTER A REASONABLE PERIOD OF TIME TO
ASSUME SUCH DEFENSE AND TO EMPLOY COUNSEL OR (Z) IN SUCH ACTION THERE IS, IN THE
REASONABLE OPINION OF 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 (1) FOR ANY SETTLEMENT BY A PURCHASER PARTY
EFFECTED WITHOUT THE COMPANY'S PRIOR WRITTEN CONSENT, WHICH SHALL NOT BE
UNREASONABLY WITHHELD OR DELAYED; OR (2) 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.
THE INDEMNIFICATION REQUIRED BY THIS SECTION 4.8 SHALL BE MADE BY PERIODIC
PAYMENTS OF THE AMOUNT THEREOF DURING THE COURSE OF THE INVESTIGATION OR
DEFENSE, AS AND WHEN BILLS ARE RECEIVED OR ARE INCURRED. THE INDEMNITY
AGREEMENTS CONTAINED HEREIN SHALL BE IN ADDITION TO ANY CAUSE OF ACTION OR
SIMILAR RIGHT OF ANY PURCHASER PARTY AGAINST THE COMPANY OR OTHERS AND ANY
LIABILITIES THE COMPANY MAY BE SUBJECT TO PURSUANT TO LAW.
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.
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4.10
LISTING OF COMMON STOCK. THE COMPANY HEREBY AGREES TO USE 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 THEN TAKE ALL ACTION REASONABLY NECESSARY TO
CONTINUE THE LISTING AND TRADING OF ITS COMMON STOCK ON A TRADING MARKET AND
WILL COMPLY IN ALL RESPECTS WITH THE COMPANY'S REPORTING, FILING AND OTHER
OBLIGATIONS UNDER THE BYLAWS OR RULES OF THE TRADING MARKET. THE COMPANY