PARTY AND NOT WITH A VIEW TOWARD
THE RESALE OR DISTRIBUTION THEREOF AND THAT IT WILL NOT OFFER, SELL OR OTHERWISE
DISPOSE OF THIS WARRANT OR ANY OF THE COMMON STOCK TO BE ISSUED UPON THE
EXERCISE OR CONVERSION HEREOF EXCEPT IN ACCORDANCE HEREWITH AND UNDER
CIRCUMSTANCES WHICH WILL NOT RESULT IN A VIOLATION OF THE SECURITIES ACT OR OF
APPLICABLE STATE SECURITIES LAWS.
NOTHING CONTAINED HEREIN SHALL BE DEEMED A
REPRESENTATION OR WARRANTY BY THE HOLDER TO HOLD THIS WARRANT OR ANY SHARES OF
COMMON STOCK TO BE ISSUED UPON THE EXERCISE HEREOF FOR ANY PERIOD OF TIME.
17.
MISCELLANEOUS.
(A)
JURISDICTION.
THIS WARRANT SHALL CONSTITUTE A CONTRACT UNDER THE LAWS OF
NEW YORK, WITHOUT REGARD TO ITS CONFLICT OF LAW, PRINCIPLES OR RULES, AND BE
SUBJECT TO ARBITRATION PURSUANT TO THE TERMS SET FORTH IN THE PURCHASE
AGREEMENT.
(B)
RESTRICTIONS.
THE HOLDER ACKNOWLEDGES THAT THE WARRANT SHARES ACQUIRED
UPON THE EXERCISE OF THIS WARRANT, IF NOT REGISTERED, WILL HAVE RESTRICTIONS
UPON RESALE IMPOSED BY STATE AND FEDERAL SECURITIES LAWS.
(C)
NONWAIVER AND EXPENSES.
NO COURSE OF DEALING OR ANY DELAY OR FAILURE TO
EXERCISE ANY RIGHT HEREUNDER ON THE PART OF HOLDER SHALL OPERATE AS A WAIVER OF
SUCH RIGHT OR OTHERWISE PREJUDICE HOLDER'S RIGHTS, POWERS OR REMEDIES,
NOTWITHSTANDING ALL RIGHTS HEREUNDER TERMINATE ON THE TERMINATION DATE.
IF THE
COMPANY WILLFULLY AND KNOWINGLY FAILS TO COMPLY WITH ANY PROVISION OF THIS
WARRANT, WHICH RESULTS IN ANY MATERIAL DAMAGES TO THE HOLDER, THE COMPANY SHALL
PAY TO HOLDER SUCH AMOUNTS AS SHALL BE SUFFICIENT TO COVER ANY COSTS AND
EXPENSES INCLUDING, BUT NOT LIMITED TO, REASONABLE ATTORNEYS' FEES, INCLUDING
THOSE OF APPELLATE PROCEEDINGS, INCURRED BY HOLDER IN COLLECTING
13
ANY AMOUNTS DUE PURSUANT HERETO OR IN OTHERWISE ENFORCING ANY OF ITS RIGHTS,
POWERS OR REMEDIES HEREUNDER.
(D)
NOTICES.
ANY NOTICE, REQUEST OR OTHER DOCUMENT REQUIRED OR PERMITTED TO
BE GIVEN OR DELIVERED TO THE HOLDER BY THE COMPANY SHALL BE DELIVERED IN
ACCORDANCE WITH THE NOTICE PROVISIONS OF THE PURCHASE AGREEMENT.
(E)
LIMITATION OF LIABILITY.
NO PROVISION HEREOF, IN THE ABSENCE OF
AFFIRMATIVE ACTION BY HOLDER TO PURCHASE WARRANT SHARES, AND NO ENUMERATION
HEREIN OF THE RIGHTS OR PRIVILEGES OF HOLDER, SHALL GIVE RISE TO ANY LIABILITY
OF HOLDER FOR THE PURCHASE PRICE OF ANY COMMON STOCK OR AS A STOCKHOLDER OF THE
COMPANY, WHETHER SUCH LIABILITY IS ASSERTED BY THE COMPANY OR BY CREDITORS OF
THE COMPANY.
(F)
REMEDIES.
HOLDER, IN ADDITION TO BEING ENTITLED TO EXERCISE ALL RIGHTS
GRANTED BY LAW, INCLUDING RECOVERY OF DAMAGES, WILL BE ENTITLED TO SPECIFIC
PERFORMANCE OF ITS RIGHTS UNDER THIS WARRANT.
THE COMPANY AGREES THAT MONETARY
DAMAGES WOULD NOT BE ADEQUATE COMPENSATION FOR ANY LOSS INCURRED BY REASON OF A
BREACH BY IT OF THE PROVISIONS OF THIS WARRANT AND HEREBY AGREES TO WAIVE THE
DEFENSE IN ANY ACTION FOR SPECIFIC PERFORMANCE THAT A REMEDY AT LAW WOULD BE
ADEQUATE.
(G)
SUCCESSORS AND ASSIGNS.
SUBJECT TO APPLICABLE SECURITIES LAWS AND THE
PROVISIONS OF THIS WARRANT, THIS WARRANT AND THE RIGHTS