COMPANY (OR THE PERFORMANCE
THEREOF). THE COMPANY ACKNOWLEDGES THAT A BREACH BY IT OF ITS OBLIGATIONS
HEREUNDER WILL CAUSE IRREPARABLE HARM TO THE HOLDERS 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, EXCEPT AS OTHERWISE SPECIFICALLY
SET FORTH HEREIN, THE HOLDERS 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. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, NO HOLDER
SHALL BE ENTITLED TO CONSEQUENTIAL, INDIRECT OR INCIDENTAL DAMAGES HEREUNDER.
HOWEVER, THE FOREGOING SHALL NOT IN ANY WAY LIMIT A HOLDER 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.
(15)
CONSTRUCTION. THIS CERTIFICATE OF DESIGNATIONS SHALL BE DEEMED TO BE
JOINTLY DRAFTED BY THE COMPANY AND ALL BUYERS (AS DEFINED IN THE SECURITIES
PURCHASE AGREEMENT) AND SHALL NOT BE CONSTRUED AGAINST ANY PERSON AS THE DRAFTER
HEREOF.
(16)
FAILURE OR INDULGENCE NOT WAIVER. NO FAILURE OR DELAY ON THE PART OF A
HOLDER IN THE EXERCISE OF ANY POWER, RIGHT OR PRIVILEGE HEREUNDER SHALL OPERATE
AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL EXERCISE OF ANY SUCH POWER,
RIGHT OR PRIVILEGE PRECLUDE OTHER OR FURTHER EXERCISE THEREOF OR OF ANY OTHER
RIGHT, POWER OR PRIVILEGE.
(17)
NOTICE. WHENEVER NOTICE OR OTHER COMMUNICATION IS REQUIRED TO BE GIVEN
UNDER THIS CERTIFICATE OF DESIGNATIONS, UNLESS OTHERWISE PROVIDED HEREIN, SUCH
NOTICE SHALL BE GIVEN IN ACCORDANCE WITH SECTION 9(F) OF THE SECURITIES PURCHASE
AGREEMENT (PROVIDED THAT IF THE PREFERRED SHARES ARE NOT HELD BY A BUYER THEN
SUBSTITUTING THE WORDS "HOLDER OF SECURITIES" FOR THE WORD "BUYER").
(18)
TRANSFER OF PREFERRED SHARES. A HOLDER MAY ASSIGN SOME OR ALL OF THE
PREFERRED SHARES AND THE ACCOMPANYING RIGHTS HEREUNDER HELD BY SUCH HOLDER
WITHOUT THE
37
CONSENT OF THE COMPANY; PROVIDED THAT SUCH ASSIGNMENT IS IN COMPLIANCE WITH
APPLICABLE SECURITIES LAWS.
(19)
PREFERRED SHARE REGISTER. THE COMPANY SHALL MAINTAIN AT ITS PRINCIPAL
EXECUTIVE OFFICES (OR SUCH OTHER OFFICE OR AGENCY OF THE COMPANY AS IT MAY
DESIGNATE BY NOTICE TO THE HOLDERS), A REGISTER FOR THE PREFERRED SHARES, IN
WHICH THE COMPANY SHALL RECORD THE NAME AND ADDRESS OF THE PERSONS IN WHOSE NAME
THE PREFERRED SHARES HAVE BEEN ISSUED, AS WELL AS THE NAME AND ADDRESS OF EACH
TRANSFEREE. THE COMPANY MAY TREAT THE PERSON IN WHOSE NAME ANY PREFERRED SHARE
IS REGISTERED ON THE REGISTER AS THE OWNER AND HOLDER THEREOF FOR ALL PURPOSES,
NOTWITHSTANDING ANY NOTICE TO THE CONTRARY, BUT IN ALL EVENTS RECOGNIZING ANY
PROPERLY MADE TRANSFERS.
(20)
STOCKHOLDER MATTERS. ANY STOCKHOLDER ACTION, APPROVAL OR CONSENT
REQUIRED, DESIRED OR OTHERWISE SOUGHT BY THE COMPANY PURSUANT TO THE RULES AND
REGULATIONS OF THE PRINCIPAL MARKET, THE DGCL, THIS CERTIFICATE OF DESIGNATIONS
OR OTHERWISE WITH RESPECT TO THE