REQUIRED OR
PERMITTED TO BE PROVIDED HEREUNDER SHALL BE IN WRITING AND SHALL BE DEEMED GIVEN
AND EFFECTIVE ON THE EARLIEST OF (A) THE NEXT TRADING DAY AFTER DELIVERY, IF
SUCH NOTICE OR COMMUNICATION IS DELIVERED VIA CONFIRMED REGISTERED MAIL,
(B) THE 2ND TRADING DAY FOLLOWING THE DATE OF MAILING, IF SENT BY U.S.
NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE, OR (C) UPON ACTUAL RECEIPT BY
THE PARTY TO WHOM SUCH NOTICE IS REQUIRED TO BE GIVEN.
THE ADDRESS FOR SUCH
NOTICES AND COMMUNICATIONS SHALL BE AS SET FORTH ON THE SIGNATURE PAGES ATTACHED
HERETO (UNLESS LATER UPDATED IN WRITING BY THE PARTIES HERETO TO THE OTHER
PARTIES) AND IF TO THE COMPANY, WITH A COPY TO:
GUNDERSON DETTMER STOUGH VILLENEUVE FRANKLIN & HACHIGIAN, LLP
155 CONSTITUTION DRIVE
MENLO PARK, CA 94025
ATTENTION: SCOTT C. DETTMER, BENNETT L. YEE
FAX: (650) 321-2800.
20.
FEES AND EXPENSES.
EXCEPT AS EXPRESSLY SET FORTH HEREIN AND IN THE TRANSACTION
DOCUMENTS TO THE CONTRARY, EACH PARTY SHALL PAY THE FEES AND EXPENSES OF ITS
ADVISERS, COUNSEL, ACCOUNTANTS AND OTHER EXPERTS, IF ANY, AND ALL OTHER EXPENSES
INCURRED BY SUCH PARTY INCIDENT TO THE NEGOTIATION, PREPARATION, EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT; PROVIDED, HOWEVER, THE COMPANY SHALL
REIMBURSE, IN CONNECTION WITH EACH EXERCISE OF THE UNIT WARRANT (AND PAYABLE ON
SUCH EXERCISE DATES), THE REASONABLE FEES FOR THE HOLDERS' LEGAL COUNSEL, FEES
TO OTHER ADVISORS RETAINED BY THE HOLDERS TO REPRESENT THEM IN THE TRANSACTIONS
CONTEMPLATED BY THIS AGREEMENT AND THE TRANSACTION DOCUMENTS, IN AN AGGREGATE
AMOUNT NOT TO EXCEED $100,000, LESS ANY AMOUNT PREVIOUSLY REIMBURSED BY THE
COMPANY PURSUANT TO THIS SECTION 20 OR PURSUANT TO SECTION 5.2 OF THE PURCHASE
AGREEMENT.
THE COMPANY SHALL PAY ALL TRANSFER AGENT FEES, STAMP TAXES AND OTHER
TAXES AND DUTIES LEVIED IN CONNECTION WITH THE DELIVERY OF ANY SECURITIES TO THE
PURCHASERS.
21.
SURVIVAL.
THE REPRESENTATIONS, WARRANTIES, COVENANTS AND OTHER AGREEMENTS
CONTAINED HEREIN SHALL SURVIVE THE DELIVERY, EXERCISE AND/OR CONVERSION OF THIS
WARRANT AGREEMENT, THE SERIES B PREFERRED STOCK, THE COMMON STOCK PURCHASE
WARRANTS, THE WARRANT CERTIFICATES AND THE SERIES B UNDERLYING SHARES, AS
APPLICABLE, FOR THE APPLICABLE STATUE OF LIMITATIONS.
22.
SUCCESSORS.
ALL THE COVENANTS AND PROVISIONS OF THE WARRANT AGREEMENT BY OR FOR
THE BENEFIT OF THE HOLDER SHALL INURE TO THE BENEFIT OF HIS SUCCESSORS AND
ASSIGNS HEREUNDER.
23.
GOVERNING LAW. THE WARRANT AGREEMENT SHALL BE DEEMED TO BE MADE UNDER THE LAWS
OF THE STATE OF NEW YORK AND FOR ALL PURPOSES SHALL BE CONSTRUED IN ACCORDANCE
WITH THE LAWS OF SAID STATE, EXCLUDING CHOICE OF LAW PRINCIPLES THEREOF.
24.
ENTIRE AGREEMENT; AMENDMENT; WAIVER.
THE WARRANT AGREEMENT AND ALL ATTACHMENTS
HERETO AND ALL INCORPORATION BY REFERENCES SET FORTH HEREIN, SET FORTH THE
ENTIRE AGREEMENT AND UNDERSTANDING BETWEEN THE PARTIES AS TO THE SUBJECT MATTER
HEREOF AND MERGES AND SUPERSEDES ALL PRIOR DISCUSSIONS, AGREEMENTS AND
UNDERSTANDINGS OF ANY AND EVERY NATURE AMONG THEM. THE WARRANT AGREEMENT MAY BE
AMENDED, THE COMPANY MAY TAKE ANY ACTION HEREIN PROHIBITED OR OMIT TO TAKE ANY
ACTION