(AS DEFINED
IN THE ADDITIONAL NOTES) OR RIGHTS TO PURCHASE STOCK, WARRANTS, SECURITIES OR
OTHER PROPERTY TO HOLDERS OF COMMON STOCK OR (C) FOR DETERMINING RIGHTS TO VOTE
WITH RESPECT TO ANY FUNDAMENTAL TRANSACTION, DISSOLUTION OR LIQUIDATION,
PROVIDED IN EACH CASE THAT SUCH INFORMATION SHALL BE MADE KNOWN TO THE PUBLIC
PRIOR TO OR IN CONJUNCTION WITH SUCH NOTICE BEING PROVIDED TO SUCH HOLDER.
6
8.
AMENDMENT AND WAIVER.
EXCEPT AS
OTHERWISE PROVIDED HEREIN, THE PROVISIONS OF THIS AIR MAY BE AMENDED AND THE
COMPANY MAY TAKE ANY ACTION HEREIN PROHIBITED, OR OMIT TO PERFORM ANY ACT HEREIN
REQUIRED TO BE PERFORMED BY IT, ONLY IF THE COMPANY HAS OBTAINED THE WRITTEN
CONSENT OF THE REQUIRED HOLDERS; PROVIDED THAT NO SUCH ACTION MAY INCREASE THE
EXERCISE PRICE OF ANY AIRS OR DECREASE THE PRINCIPAL AMOUNT OF ADDITIONAL NOTES
OBTAINABLE UPON EXERCISE OF ANY AIRS WITHOUT THE WRITTEN CONSENT OF THE HOLDER
OF THIS AIR.
NO SUCH AMENDMENT SHALL BE EFFECTIVE TO THE EXTENT THAT IT APPLIES
TO LESS THAN ALL OF THE HOLDERS OF THE AIRS THEN OUTSTANDING.
9.
GOVERNING LAW.
THIS AIR SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, AND ALL QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, INTERPRETATION AND PERFORMANCE OF THIS AIR SHALL BE
GOVERNED BY, THE INTERNAL LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT
TO ANY CHOICE OF LAW OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE
OF NEW YORK OR ANY OTHER JURISDICTIONS) THAT WOULD CAUSE THE APPLICATION OF THE
LAWS OF ANY JURISDICTIONS OTHER THAN THE STATE OF NEW YORK.
10.
CONSTRUCTION; HEADINGS.
THIS AIR SHALL BE
DEEMED TO BE JOINTLY DRAFTED BY THE COMPANY AND THE HOLDER AND SHALL NOT BE
CONSTRUED AGAINST ANY PERSON AS THE DRAFTER HEREOF.
THE HEADINGS OF THIS AIR
ARE FOR CONVENIENCE OF REFERENCE AND SHALL NOT FORM PART OF, OR AFFECT THE
INTERPRETATION OF, THIS AIR.
11.
REMEDIES, OTHER OBLIGATIONS, BREACHES AND
INJUNCTIVE RELIEF.
THE REMEDIES PROVIDED IN THIS AIR SHALL BE CUMULATIVE AND IN
ADDITION TO ALL OTHER REMEDIES AVAILABLE UNDER THIS AIR, THE SECURITIES PURCHASE
AGREEMENT AND THE OTHER TRANSACTION DOCUMENTS (AS DEFINED IN THE SECURITIES
PURCHASE AGREEMENT), AT LAW OR IN EQUITY (INCLUDING A DECREE OF SPECIFIC
PERFORMANCE AND/OR OTHER INJUNCTIVE RELIEF), AND NOTHING HEREIN SHALL LIMIT THE
RIGHT OF THE HOLDER OF THIS AIR TO PURSUE ACTUAL DAMAGES FOR ANY FAILURE BY THE
COMPANY TO COMPLY WITH THE TERMS OF THIS AIR.
THE COMPANY ACKNOWLEDGES THAT A
BREACH BY IT OF ITS OBLIGATIONS HEREUNDER WILL CAUSE IRREPARABLE HARM TO THE
HOLDER OF THIS AIR AND THAT THE REMEDY AT LAW FOR ANY SUCH BREACH MAY BE
INADEQUATE.
THE COMPANY THEREFORE AGREES THAT, IN THE EVENT OF ANY SUCH BREACH
OR THREATENED BREACH, THE HOLDER OF THIS AIR SHALL BE ENTITLED, IN ADDITION TO
ALL OTHER AVAILABLE REMEDIES, TO AN INJUNCTION RESTRAINING ANY BREACH, WITHOUT
THE NECESSITY OF SHOWING ECONOMIC LOSS AND WITHOUT ANY BOND OR OTHER SECURITY
BEING REQUIRED.
12.
TRANSFER.
THIS AIR MAY BE OFFERED FOR