HEREUNDER.
FOR EXAMPLE, IF THE HOLDER PURCHASES COMMON STOCK HAVING
A TOTAL PURCHASE PRICE OF $11,000 TO COVER A BUY-IN WITH RESPECT TO AN ATTEMPTED
EXERCISE OF SHARES OF COMMON STOCK WITH A MARKET PRICE ON THE DATE OF EXERCISE
TOTALED $10,000, UNDER CLAUSE (1) OF THE IMMEDIATELY PRECEDING SENTENCE THE
COMPANY SHALL BE REQUIRED TO PAY THE HOLDER $1,000.
THE HOLDER SHALL PROVIDE
THE COMPANY WRITTEN NOTICE, WHICH NOTICE SHALL INCLUDE SUCH SUPPORTING
DOCUMENTATION AS REASONABLY NECESSARY TO SUBSTANTIATE THE AMOUNTS PAYABLE,
INDICATING THE AMOUNTS PAYABLE TO THE HOLDER IN RESPECT OF THE BUY-IN.
2
(D)
THE COMPANY'S OBLIGATIONS TO ISSUE AND
DELIVER WARRANT SHARES IN ACCORDANCE WITH THE TERMS HEREOF ARE ABSOLUTE AND
UNCONDITIONAL, IRRESPECTIVE OF ANY ACTION OR INACTION BY THE HOLDER TO ENFORCE
THE SAME, ANY WAIVER OR CONSENT WITH RESPECT TO ANY PROVISION HEREOF, THE
RECOVERY OF ANY JUDGMENT AGAINST ANY PERSON OR ANY ACTION TO ENFORCE THE SAME,
OR ANY SETOFF, COUNTERCLAIM, RECOUPMENT, LIMITATION OR TERMINATION, OR ANY
BREACH OR ALLEGED BREACH BY THE HOLDER OR ANY OTHER PERSON OF ANY OBLIGATION TO
THE COMPANY OR ANY VIOLATION OR ALLEGED VIOLATION OF LAW BY THE HOLDER OR ANY
OTHER PERSON, AND IRRESPECTIVE OF ANY OTHER CIRCUMSTANCE WHICH MIGHT OTHERWISE
LIMIT SUCH OBLIGATION OF THE COMPANY TO THE HOLDER IN CONNECTION WITH THE
ISSUANCE OF WARRANT SHARES.
NOTHING HEREIN SHALL LIMIT A HOLDER'S RIGHT TO
PURSUE ANY OTHER REMEDIES AVAILABLE TO IT HEREUNDER, AT LAW OR IN EQUITY
INCLUDING, WITHOUT LIMITATION, A DECREE OF SPECIFIC PERFORMANCE AND/OR
INJUNCTIVE RELIEF WITH RESPECT TO THE COMPANY'S FAILURE TO TIMELY DELIVER
CERTIFICATES REPRESENTING SHARES OF COMMON STOCK UPON EXERCISE OF THE WARRANT AS
REQUIRED PURSUANT TO THE TERMS HEREOF.
(E)
IF, DESPITE THE COMPANY'S OBLIGATIONS UNDER
THE PURCHASE AGREEMENT AND THIS WARRANT, THE WARRANT SHARES TO BE ISSUED ARE NOT
REGISTERED AND AVAILABLE FOR ISSUANCE PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT, THEN, NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, THE
HOLDER OF THIS WARRANT MAY, AT ITS ELECTION EXERCISED IN ITS SOLE DISCRETION,
EXERCISE THIS WARRANT IN WHOLE OR IN PART AND, IN LIEU OF PAYING THE EXERCISE
PRICE IN CASH, ELECT INSTEAD TO RECEIVE UPON SUCH EXERCISE THE "NET NUMBER" OF
SHARES OF COMMON STOCK DETERMINED ACCORDING TO THE FOLLOWING FORMULA (A
"CASHLESS EXERCISE"):
Net Number =
(A x B) - (A x C)
B
For purposes of the foregoing formula:
A= the total number of shares with respect to which this Warrant is then being
exercised;
B= the greater of the (i) closing price per share of the Common Stock (as
reported by Bloomberg) on the Trading day immediately preceding the date of the
Exercise Notice or (ii) the average of the closing prices per share of Common
Stock (as reported by Bloomberg) for the ten (10) Trading days immediately
preceding the date of the Exercise Notice ; and
C= the Exercise Price then in effect for the applicable Warrant Shares at the
time of such exercise.
6.
CHARGES, TAXES AND EXPENSES.
ISSUANCE
AND DELIVERY