SHALL BE ENTITLED TO
SEEK TEMPORARY AND PERMANENT INJUNCTIVE RELIEF IN ANY SUCH CASE WITHOUT THE
NECESSITY OF PROVING ACTUAL DAMAGES AND WITHOUT POSTING A BOND OR OTHER
SECURITY.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO BUYER
OR HOLDER OF SECURITIES SHALL BE ENTITLED TO CONSEQUENTIAL, INDIRECT OR
INCIDENTAL DAMAGES HEREUNDER.
HOWEVER, THE FOREGOING SHALL NOT IN ANY WAY LIMIT
A BUYER OR HOLDER OF SECURITIES FROM BEING REIMBURSED FOR ITS COSTS, FEES OR
EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES AND
DISBURSEMENTS IN CONNECTION WITH ANY OF ITS RIGHTS AND REMEDIES HEREUNDER.
(N)
RESCISSION AND WITHDRAWAL RIGHT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN (AND WITHOUT LIMITING ANY
SIMILAR PROVISIONS OF) THE TRANSACTION DOCUMENTS, WHENEVER ANY BUYER EXERCISES A
RIGHT, ELECTION, DEMAND OR OPTION UNDER A TRANSACTION DOCUMENT AND THE COMPANY
DOES NOT TIMELY PERFORM ITS RELATED OBLIGATIONS WITHIN THE PERIODS THEREIN
PROVIDED, THEN SUCH BUYER MAY RESCIND OR WITHDRAW, IN ITS SOLE DISCRETION FROM
TIME TO TIME PRIOR TO THE COMPANY'S PERFORMANCE UPON WRITTEN NOTICE TO THE
COMPANY, ANY
34
RELEVANT NOTICE, DEMAND OR ELECTION IN WHOLE OR IN PART WITHOUT PREJUDICE TO ITS
FUTURE ACTIONS AND RIGHTS.
(O)
PAYMENT SET ASIDE.
TO THE EXTENT THAT THE
COMPANY MAKES A PAYMENT OR PAYMENTS TO THE BUYERS HEREUNDER OR PURSUANT TO ANY
OF THE OTHER TRANSACTION DOCUMENTS OR THE BUYERS ENFORCE OR EXERCISE THEIR
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, DISGORGED
BY OR ARE REQUIRED TO BE REFUNDED, REPAID OR OTHERWISE RESTORED TO THE COMPANY,
A TRUSTEE, RECEIVER OR ANY OTHER PERSON UNDER ANY LAW (INCLUDING, WITHOUT
LIMITATION, ANY BANKRUPTCY LAW, FOREIGN, 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.
(P)
INDEPENDENT NATURE OF BUYERS' OBLIGATIONS
AND RIGHTS.
THE OBLIGATIONS OF EACH BUYER UNDER ANY TRANSACTION DOCUMENT ARE
SEVERAL AND NOT JOINT WITH THE OBLIGATIONS OF ANY OTHER BUYER, AND NO BUYER
SHALL BE RESPONSIBLE IN ANY WAY FOR THE PERFORMANCE OF THE OBLIGATIONS OF ANY
OTHER BUYER UNDER ANY TRANSACTION DOCUMENT.
NOTHING CONTAINED HEREIN OR IN ANY
OTHER TRANSACTION DOCUMENT, AND NO ACTION TAKEN BY ANY BUYER PURSUANT HERETO OR
THERETO, SHALL BE DEEMED TO CONSTITUTE THE BUYERS AS, AND THE COMPANY
ACKNOWLEDGES THAT THE BUYERS DO NOT SO CONSTITUTE, A PARTNERSHIP, AN
ASSOCIATION, A JOINT VENTURE OR ANY OTHER KIND OF ENTITY, OR CREATE A
PRESUMPTION THAT THE BUYERS ARE IN ANY WAY ACTING IN CONCERT OR AS A GROUP WITH
RESPECT TO SUCH OBLIGATIONS OR THE TRANSACTIONS CONTEMPLATED BY THE TRANSACTION
DOCUMENTS AND THE COMPANY ACKNOWLEDGES THAT THE BUYERS ARE NOT ACTING IN CONCERT
OR AS A GROUP, AND