thereof, or consents thereto, as may be necessary
from any public regulatory body or bodies having jurisdiction thereof.
17.
MANDATORY TERMINATION.
THE COMPANY SHALL HAVE THE RIGHT, UPON 30 DAYS'
PRIOR WRITTEN NOTICE TO THE HOLDER (THE "MANDATORY TERMINATION NOTICE"), TO
TERMINATE THIS WARRANT, PROVIDED THAT (I) THE WARRANT SHARES ARE REGISTERED FOR
RESALE PURSUANT TO THE SECURITIES ACT OR ARE FREELY TRADABLE WITHOUT RESTRICTION
OR LEGEND AND HAVE BEEN CONTINUOUSLY FOR AT LEAST THE 20-TRADING DAY PERIOD
IMMEDIATELY PRECEDING THE DATE OF THE MANDATORY TERMINATION NOTICE, (II) THE
COMMON STOCK SHALL BE LISTED OR QUOTED FOR TRADING ON THE PRINCIPAL MARKET
CONTINUOUSLY DURING THE 20-TRADING DAY PERIOD IMMEDIATELY PRECEDING THE DATE OF
THE MANDATORY TERMINATION NOTICE AND (II) THE VWAPS FOR EACH OF THE 20 TRADING
DAYS IMMEDIATELY PRECEDING THE DATE OF THE MANDATORY TERMINATION NOTICE WERE
EQUAL TO OR GREATER THAN $11.00 (SUBJECT TO ADJUSTMENT FOR REVERSE AND FORWARD
STOCK SPLITS, STOCK DIVIDENDS, STOCK COMBINATIONS AND OTHER SIMILAR TRANSACTIONS
OF THE COMMON STOCK THAT OCCUR AFTER THE DATE OF THIS AGREEMENT).
IF THIS
WARRANT HAS NOT BEEN EXERCISED IN FULL UPON THE EXPIRATION OF SUCH 30 DAY NOTICE
PERIOD, THIS WARRANT SHALL TERMINATE AUTOMATICALLY WITHOUT ANY FURTHER ACTION ON
THE PART OF THE HOLDER OR THE COMPANY.
18.
MISCELLANEOUS.
(A)
JURISDICTION.
THIS WARRANT SHALL CONSTITUTE A CONTRACT UNDER THE LAWS OF
CALIFORNIA, WITHOUT REGARD TO ITS CONFLICT OF LAW, PRINCIPLES OR RULES.
(B)
RESTRICTIONS.
THE HOLDER ACKNOWLEDGES THAT THE WARRANT SHARES ACQUIRED
UPON THE EXERCISE OF THIS WARRANT, IF NOT REGISTERED, WILL HAVE RESTRICTIONS
UPON RESALE IMPOSED BY STATE AND FEDERAL SECURITIES LAWS.
(C)
NONWAIVER AND EXPENSES.
NO COURSE OF DEALING OR ANY DELAY OR FAILURE TO
EXERCISE ANY RIGHT HEREUNDER ON THE PART OF HOLDER SHALL OPERATE AS A WAIVER OF
SUCH RIGHT OR OTHERWISE PREJUDICE HOLDER'S RIGHTS, POWERS OR REMEDIES,
NOTWITHSTANDING ALL RIGHTS HEREUNDER TERMINATE ON THE TERMINATION DATE.
IF THE
COMPANY WILLFULLY AND KNOWINGLY FAILS TO COMPLY WITH ANY PROVISION OF THIS
WARRANT, WHICH RESULTS IN ANY MATERIAL DAMAGES TO THE HOLDER, THE COMPANY SHALL
PAY TO HOLDER SUCH AMOUNTS AS SHALL BE SUFFICIENT TO COVER ANY COSTS AND
EXPENSES INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, INCLUDING
THOSE OF APPELLATE PROCEEDINGS, INCURRED BY HOLDER IN COLLECTING ANY AMOUNTS DUE
PURSUANT HERETO OR IN OTHERWISE ENFORCING ANY OF ITS RIGHTS, POWERS OR REMEDIES
HEREUNDER.
(D)
NOTICES.
ANY NOTICE, REQUEST OR OTHER DOCUMENT REQUIRED OR PERMITTED TO
BE GIVEN OR DELIVERED TO THE HOLDER BY THE COMPANY SHALL BE DELIVERED IN
ACCORDANCE WITH THE NOTICE PROVISIONS OF THE SUBSCRIPTION AGREEMENT.
(E)
LIMITATION OF LIABILITY.
NO PROVISION HEREOF, IN THE ABSENCE OF ANY
AFFIRMATIVE ACTION BY HOLDER TO EXERCISE THIS WARRANT OR PURCHASE WARRANT
SHARES, AND NO ENUMERATION HEREIN OF THE RIGHTS OR PRIVILEGES OF HOLDER, SHALL
GIVE RISE TO ANY LIABILITY OF
16
HOLDER FOR THE SUBSCRIPTION FOR ANY COMMON STOCK OR AS A SHAREHOLDER OF THE
COMPANY, WHETHER SUCH LIABILITY IS ASSERTED BY THE COMPANY OR BY CREDITORS OF
THE COMPANY.
(F)
REMEDIES.