COMMON STOCK) IT OWNS TO ITS AFFILIATES WITHOUT SUCH SALE OR TRANSFER
BEING SUBJECT TO THE TERMS OF THIS AGREEMENT; PROVIDED, HOWEVER, THAT ANY SUCH
AFFILIATE SHALL BECOME A PARTY TO AND BOUND BY THIS AGREEMENT AND ITS OWNERSHIP
AND SALES OF SHARES OF SERIES D PREFERRED STOCK AND SUBJECT COMMON STOCK AND
OTHER SECURITIES EXERCISABLE OR EXCHANGEABLE FOR OR CONVERTIBLE INTO SHARES OF
SERIES D PREFERRED STOCK OR SUBJECT COMMON STOCK SHALL BE AGGREGATED WITH THE
TRANSFERRING PARTY FOR PURPOSES OF SECTION 2.1.
2.4
TERM OF TRADING AGREEMENT.
THE TERM OF THE TRADING AGREEMENT
SHALL COMMENCE ON THE EFFECTIVE DATE AND TERMINATE ON SEPTEMBER 7, 2004.
2.5
AMENDMENTS TO THE TRADING AGREEMENT.
THE PARTIES MAY AMEND THIS
AGREEMENT ONLY UPON THE WRITTEN AGREEMENT OF THE PARTIES HERETO AT SUCH TIME AND
THE COMPANY AND PROVIDED THAT THE PRIOR WRITTEN CONSENT OF HOLDERS OF AT LEAST
SEVENTY-FIVE PERCENT (75%) OF THE OUTSTANDING SHARES OF THE COMPANY'S SERIES A
CONVERTIBLE PREFERRED STOCK TO SUCH AMENDMENT IS ALSO OBTAINED.
ARTICLE III
GENERAL PROVISIONS
3.1
LEGEND ON SHARE CERTIFICATES.
ALL COMPANY SECURITIES ISSUED AT
THE CLOSING (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT) OR OTHERWISE THAT
ARE SUBJECT TO THE TERMS AND PROVISIONS OF ARTICLE II, IN ADDITION TO SUCH OTHER
LEGENDS AS MAY BE REQUIRED BY LAW AND ANY OTHER LEGEND REQUIRED BY ANY
TRANSACTION DOCUMENT (AS DEFINED IN THE SECURITIES PURCHASE AGREEMENT) SHALL
BEAR THE FOLLOWING LEGEND:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE ALSO SUBJECT TO CERTAIN
REQUIREMENTS AS TO TRADING CONTAINED IN THE STOCK TRADING AGREEMENT, DATED JUNE
27, 2003, BY AND
5
AMONG THE COMPANY AND CERTAIN SECURITY HOLDERS, A COPY OF WHICH IS ON FILE WITH
THE SECRETARY OF THE COMPANY.
Upon the termination of this Agreement, each Party shall be entitled to receive,
in exchange for any security bearing the legend regarding this Agreement
specifically set forth above, a security without such legend.
3.2
INJUNCTIVE RELIEF.
IT IS ACKNOWLEDGED THAT IT IS IMPOSSIBLE TO
MEASURE IN MONEY THE DAMAGES THAT WOULD BE SUFFERED IF THE PARTIES FAIL TO
COMPLY WITH THE OBLIGATIONS IMPOSED ON THEM BY THIS AGREEMENT AND THAT, IN THE
EVENT OF ANY SUCH FAILURE, AN AGGRIEVED PARTY WOULD BE IRREPARABLY DAMAGED AND
WOULD NOT HAVE AN ADEQUATE REMEDY AT LAW.
ANY SUCH PARTY SHALL, THEREFORE, BE
ENTITLED TO INJUNCTIVE RELIEF AND/OR SPECIFIC PERFORMANCE TO ENFORCE SUCH
OBLIGATIONS, AND IF ANY ACTION SHOULD BE BROUGHT IN EQUITY TO ENFORCE ANY OF
SUCH PROVISIONS OF THIS AGREEMENT, NONE OF THE PARTIES SHALL RAISE THE DEFENSE
THAT THERE IS AN ADEQUATE REMEDY AT LAW.
3.3
GOVERNING LAW.
EXCEPT AS TO MATTERS GOVERNED BY THE GENERAL
CORPORATION LAW OF THE STATE OF DELAWARE AND DECISIONS THEREUNDER OF THE
DELAWARE COURTS APPLICABLE TO DELAWARE CORPORATIONS, WHICH SHALL BE GOVERNED BY
SUCH LAWS AND DECISIONS, THIS AGREEMENT SHALL BE CONSTRUED AND ENFORCED IN
ACCORDANCE WITH, AND THE RIGHTS OF THE PARTIES SHALL BE GOVERNED BY, THE LAWS OF
THE STATE OF NEW YORK.
3.4
ENTIRE AGREEMENT; WAIVER.
THIS