TO A BREACH OF SUCH PURCHASER'S REPRESENTATIONS, WARRANTIES OR
COVENANTS UNDER THE TRANSACTION DOCUMENTS OR ANY AGREEMENTS OR UNDERSTANDINGS
17
SUCH PURCHASER MAY HAVE WITH SUCH STOCKHOLDER OR ANY VIOLATIONS BY SUCH
PURCHASER OF STATE OR FEDERAL SECURITIES LAWS OR ANY CONDUCT BY SUCH PURCHASER
WHICH CONSTITUTES FRAUD, GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR MALFEASANCE.
IF ANY CLAIM, ACTION OR PROCEEDING 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; PROVIDED, HOWEVER,
THAT THE FAILURE TIMELY TO GIVE SUCH NOTICE SHALL AFFECT THE RIGHTS OF SUCH
PURCHASER PARTY HEREUNDER ONLY TO THE EXTENT THAT SUCH FAILURE HAS A MATERIAL
PREJUDICIAL EFFECT ON THE DEFENSES OR OTHER RIGHTS AVAILABLE TO THE COMPANY WITH
RESPECT TO SUCH CLAIM, ACTION OR PROCEEDING.
AT THE ELECTION OF THE COMPANY,
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 CLAIM, ACTION
OR PROCEEDING 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 CLAIM, ACTION
OR PROCEEDING 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 HAVE THE EXCLUSIVE RIGHT TO SETTLE ANY CLAIM, ACTION OR
PROCEEDING; PROVIDED, HOWEVER, THAT THE COMPANY WILL NOT SETTLE ANY SUCH CLAIM,
ACTION OR PROCEEDING WITHOUT THE PRIOR WRITTEN CONSENT OF THE PURCHASER PARTY,
WHICH WILL NOT BE UNREASONABLY WITHHELD OR DELAYED; PROVIDED, HOWEVER, THAT SUCH
CONSENT SHALL NOT BE REQUIRED IF THE SETTLEMENT INCLUDES A FULL AND
UNCONDITIONAL RELEASE 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.
4.6
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.
4.7
LISTING OF COMMON STOCK. THE COMPANY HEREBY
AGREES TO USE COMMERCIALLY REASONABLE EFFORTS TO LIST OR QUOTE ALL OF THE SHARES
AND WARRANT SHARES ON THE TRADING MARKET