EXERCISES A
RIGHT, ELECTION, DEMAND OR OPTION OWED TO SUCH INVESTOR BY THE COMPANY UNDER A
TRANSACTION DOCUMENT AND THE COMPANY DOES NOT TIMELY PERFORM ITS RELATED
OBLIGATIONS WITHIN THE PERIODS THEREIN PROVIDED, THEN, PRIOR TO THE PERFORMANCE
BY THE COMPANY OF THE COMPANY'S RELATED OBLIGATION, SUCH INVESTOR MAY RESCIND OR
WITHDRAW, IN ITS SOLE DISCRETION FROM TIME TO TIME UPON WRITTEN NOTICE TO SUCH
SELLER, ANY RELEVANT NOTICE, DEMAND OR ELECTION IN WHOLE OR IN PART WITHOUT
PREJUDICE TO ITS FUTURE ACTIONS AND RIGHTS.
7.14
REPLACEMENT OF SECURITIES.
IF ANY CERTIFICATE OR
INSTRUMENT EVIDENCING ANY SECURITIES IS MUTILATED, LOST, STOLEN OR DESTROYED,
THE COMPANY SHALL ISSUE OR CAUSE TO BE ISSUED IN EXCHANGE AND SUBSTITUTION FOR
AND UPON CANCELLATION THEREOF, OR IN LIEU OF AND SUBSTITUTION THEREFOR, A NEW
CERTIFICATE OR INSTRUMENT, BUT ONLY UPON RECEIPT OF EVIDENCE REASONABLY
SATISFACTORY TO THE COMPANY OF SUCH LOSS, THEFT OR DESTRUCTION AND THE EXECUTION
BY THE HOLDER THEREOF OF A CUSTOMARY LOST CERTIFICATE AFFIDAVIT OF THAT FACT AND
AN AGREEMENT TO INDEMNIFY AND HOLD HARMLESS THE COMPANY FOR ANY LOSSES IN
CONNECTION THEREWITH.
THE APPLICANTS FOR A NEW CERTIFICATE OR INSTRUMENT UNDER
SUCH CIRCUMSTANCES SHALL ALSO PAY ANY REASONABLE THIRD-PARTY COSTS ASSOCIATED
WITH THE ISSUANCE OF SUCH REPLACEMENT SECURITIES.
7.15
REMEDIES.
IN ADDITION TO BEING ENTITLED TO
EXERCISE ALL RIGHTS PROVIDED HEREIN OR GRANTED BY LAW, INCLUDING RECOVERY OF
DAMAGES, EACH OF THE INVESTORS AND THE COMPANY WILL BE ENTITLED TO SEEK SPECIFIC
PERFORMANCE UNDER THE TRANSACTION DOCUMENTS.
THE PARTIES AGREE THAT MONETARY
DAMAGES MAY NOT BE ADEQUATE COMPENSATION FOR ANY LOSS INCURRED BY REASON OF ANY
BREACH OF OBLIGATIONS DESCRIBED IN THE FOREGOING SENTENCE AND HEREBY AGREES TO
WAIVE IN ANY ACTION FOR SPECIFIC PERFORMANCE OF ANY SUCH OBLIGATION (OTHER THAN
IN CONNECTION WITH ANY ACTION FOR TEMPORARY RESTRAINING ORDER) THE DEFENSE THAT
A REMEDY AT LAW WOULD BE ADEQUATE.
7.16
PAYMENT SET ASIDE.
TO THE EXTENT THAT THE
COMPANY MAKES A PAYMENT OR PAYMENTS TO ANY INVESTOR HEREUNDER OR ANY INVESTOR
ENFORCES OR EXERCISES ITS RIGHTS HEREUNDER OR THEREUNDER, AND SUCH PAYMENT OR
PAYMENTS OR THE PROCEEDS OF SUCH ENFORCEMENT OR EXERCISE OR ANY PART THEREOF ARE
SUBSEQUENTLY INVALIDATED, DECLARED TO BE FRAUDULENT OR PREFERENTIAL, SET ASIDE,
RECOVERED FROM,
34
DISGORGED BY OR ARE REQUIRED TO BE REFUNDED, REPAID OR OTHERWISE RESTORED TO THE
COMPANY BY A TRUSTEE, RECEIVER OR ANY OTHER PERSON UNDER ANY LAW (INCLUDING,
WITHOUT LIMITATION, ANY BANKRUPTCY LAW, STATE OR FEDERAL LAW, COMMON LAW OR
EQUITABLE CAUSE OF ACTION), THEN TO THE EXTENT OF ANY SUCH RESTORATION THE
OBLIGATION OR PART THEREOF ORIGINALLY INTENDED TO BE SATISFIED SHALL BE REVIVED
AND CONTINUED IN FULL FORCE AND EFFECT AS IF SUCH PAYMENT HAD NOT BEEN MADE OR
SUCH ENFORCEMENT OR SETOFF HAD NOT OCCURRED.
7.17
ADJUSTMENTS IN SHARE NUMBERS AND PRICES.
IN THE
EVENT OF ANY STOCK SPLIT, SUBDIVISION, DIVIDEND OR DISTRIBUTION PAYABLE IN
SHARES OF COMMON STOCK (OR OTHER SECURITIES OR RIGHTS CONVERTIBLE INTO, OR
ENTITLING THE HOLDER THEREOF TO RECEIVE DIRECTLY OR INDIRECTLY