COUNTERPARTS, ALL OF WHICH SHALL BE CONSIDERED ONE AND THE SAME AGREEMENT AND
SHALL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN SIGNED BY EACH PARTY AND
DELIVERED TO EACH OTHER PARTY; PROVIDED THAT A FACSIMILE SIGNATURE SHALL BE
CONSIDERED DUE EXECUTION AND SHALL BE BINDING UPON THE SIGNATORY THERETO WITH
THE SAME FORCE AND EFFECT AS IF THE SIGNATURE WERE AN ORIGINAL, NOT A FACSIMILE
SIGNATURE.
(J)
EACH PARTY SHALL DO AND PERFORM, OR CAUSE TO BE DONE AND
PERFORMED, ALL SUCH FURTHER ACTS AND THINGS, AND SHALL EXECUTE AND DELIVER ALL
SUCH OTHER AGREEMENTS, CERTIFICATES, INSTRUMENTS AND DOCUMENTS, AS THE OTHER
PARTY MAY REASONABLY REQUEST IN ORDER TO CARRY OUT THE INTENT AND ACCOMPLISH THE
PURPOSES OF THIS AGREEMENT AND THE CONSUMMATION OF THE TRANSACTIONS CONTEMPLATED
HEREBY.
(K)
ALL CONSENTS AND OTHER DETERMINATIONS TO BE MADE BY THE INVESTORS
PURSUANT TO THIS AGREEMENT SHALL BE MADE, UNLESS OTHERWISE SPECIFIED IN THIS
AGREEMENT, BY INVESTORS HOLDING AT LEAST A MAJORITY OF THE REGISTRABLE
SECURITIES, DETERMINED AS IF ALL OF THE NOTES AND THE WARRANTS THEN OUTSTANDING
HAVE BEEN CONVERTED INTO OR EXERCISED FOR REGISTRABLE SECURITIES WITHOUT REGARD
TO ANY LIMITATIONS ON CONVERSION OF THE NOTES OR THE EXERCISE OF THE WARRANTS.
ANY CONSENT OR OTHER DETERMINATION APPROVED BY INVESTORS AS PROVIDED IN THE
IMMEDIATELY PRECEDING SENTENCE SHALL BE BINDING ON ALL INVESTORS.
(L)
THE LANGUAGE USED IN THIS AGREEMENT WILL BE DEEMED TO BE THE
LANGUAGE CHOSEN BY THE PARTIES TO EXPRESS THEIR MUTUAL INTENT AND NO RULES OF
STRICT CONSTRUCTION WILL BE APPLIED AGAINST ANY PARTY.
(M)
EACH PURCHASER AND EACH HOLDER OF THE REGISTRABLE SECURITIES SHALL
HAVE ALL RIGHTS AND REMEDIES SET FORTH IN THE TRANSACTION DOCUMENTS AND ALL
RIGHTS AND REMEDIES THAT SUCH PURCHASER AND HOLDER HAS BEEN GRANTED AT ANY TIME
UNDER ANY OTHER AGREEMENT OR CONTRACT AND ALL OF THE RIGHTS THAT SUCH PURCHASER
AND HOLDER HAS UNDER ANY LAW.
ANY PERSON HAVING ANY RIGHTS UNDER ANY PROVISION
OF THIS AGREEMENT SHALL BE ENTITLED TO ENFORCE SUCH RIGHTS SPECIFICALLY (WITHOUT
POSTING A BOND OR OTHER SECURITY OR PROVING ACTUAL DAMAGES), TO RECOVER DAMAGES
BY REASON OF ANY BREACH OF ANY PROVISION OF THIS AGREEMENT AND TO EXERCISE ALL
OTHER RIGHTS GRANTED BY LAW.
(N)
THIS AGREEMENT IS INTENDED FOR THE BENEFIT OF THE PARTIES HERETO
AND THEIR RESPECTIVE PERMITTED SUCCESSORS AND ASSIGNS AND, TO THE EXTENT
PROVIDED IN SECTIONS 6(A) AND 6(B) HEREOF, EACH INVESTOR, THE DIRECTORS,
OFFICERS, PARTNERS, MEMBERS, MANAGERS, EMPLOYEES, AGENTS, REPRESENTATIVES OF,
AND EACH PERSON, IF ANY, WHO CONTROLS ANY INVESTOR WITHIN THE MEANING OF THE
1933 ACT AND THE 1934 ACT AND EACH OF THE COMPANY'S DIRECTORS, EACH OF THE
COMPANY'S OFFICERS WHO SIGNS THE REGISTRATION STATEMENT, AND EACH PERSON, IF
ANY, WHO CONTROLS THE COMPANY WITHIN THE MEANING OF THE 1933 ACT AND THE 1934
ACT, AND IS NOT FOR THE BENEFIT OF, NOR MAY ANY PROVISION HEREOF BE ENFORCED BY,
ANY OTHER PERSON.
18
(O)
UNLESS THE CONTEXT OTHERWISE REQUIRES, (I) ALL REFERENCES TO
SECTIONS, SCHEDULES OR EXHIBITS ARE