PREFERRED STOCK
(INCLUDING ANY AMENDMENT TO THE CERTIFICATES OF DESIGNATIONS FOR THE SERIES A
PREFERRED STOCK, SERIES B PREFERRED STOCK AND SERIES C PREFERRED STOCK), IF SUCH
ACTION WOULD ADVERSELY ALTER OR CHANGE THE PREFERENCES, RIGHTS, PRIVILEGES OR
POWERS OF, OR RESTRICTIONS PROVIDED FOR THE BENEFIT OF THE PREFERRED SHARES,
REGARDLESS OF WHETHER ANY SUCH ACTION SHALL BE BY MEANS OF AMENDMENT TO THE
CERTIFICATE OF INCORPORATION OR BY MERGER, CONSOLIDATION OR OTHERWISE; (B)
INCREASE OR DECREASE (OTHER THAN BY CONVERSION) THE AUTHORIZED NUMBER OF SHARES
OF PREFERRED SHARES; (C) CREATE OR AUTHORIZE (BY RECLASSIFICATION OR OTHERWISE)
ANY NEW CLASS OR SERIES OF SHARES THAT HAS A PREFERENCE OVER OR IS ON A PARITY
WITH THE PREFERRED SHARES WITH RESPECT TO DIVIDENDS OR THE DISTRIBUTION OF
ASSETS ON THE LIQUIDATION, DISSOLUTION OR WINDING UP OF THE COMPANY; (D)
PURCHASE, REPURCHASE OR REDEEM ANY SHARES OF COMMON STOCK (OTHER THAN PURSUANT
TO EQUITY INCENTIVE AGREEMENTS WITH EMPLOYEES GIVING THE COMPANY THE RIGHT TO
REPURCHASE SHARES UPON THE TERMINATION OF SERVICES AT COST); (E) PAY DIVIDENDS
OR MAKE ANY OTHER DISTRIBUTION ON THE COMMON STOCK; OR (F) WHETHER OR NOT
PROHIBITED BY THE TERMS OF THE PREFERRED SHARES, CIRCUMVENT A RIGHT OF THE
PREFERRED SHARES.
(13)
LOST OR STOLEN CERTIFICATES. UPON RECEIPT BY THE COMPANY OF EVIDENCE
REASONABLY SATISFACTORY TO THE COMPANY OF THE LOSS, THEFT, DESTRUCTION OR
MUTILATION OF ANY PREFERRED STOCK CERTIFICATES REPRESENTING THE PREFERRED
SHARES, AND, IN THE CASE OF LOSS, THEFT OR DESTRUCTION, OF AN INDEMNIFICATION
UNDERTAKING BY THE HOLDER TO THE COMPANY IN CUSTOMARY FORM AND, IN THE CASE OF
MUTILATION, UPON SURRENDER AND CANCELLATION OF THE PREFERRED STOCK
CERTIFICATE(S), THE COMPANY SHALL EXECUTE AND DELIVER NEW PREFERRED STOCK
CERTIFICATE(S) OF LIKE
36
TENOR AND DATE; PROVIDED, HOWEVER, THE COMPANY SHALL NOT BE OBLIGATED TO
RE-ISSUE PREFERRED STOCK CERTIFICATES IF THE HOLDER CONTEMPORANEOUSLY REQUESTS
THE COMPANY TO CONVERT SUCH PREFERRED SHARES INTO COMMON STOCK.
(14)
REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND
INJUNCTIVE RELIEF. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, THE
REMEDIES PROVIDED IN THIS CERTIFICATE OF DESIGNATIONS SHALL BE CUMULATIVE AND IN
ADDITION TO ALL OTHER REMEDIES AVAILABLE UNDER THIS CERTIFICATE OF DESIGNATIONS,
AT LAW OR IN EQUITY (INCLUDING A DECREE OF SPECIFIC PERFORMANCE AND/OR OTHER
INJUNCTIVE RELIEF). EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN, NO REMEDY
CONTAINED HEREIN SHALL BE DEEMED A WAIVER OF COMPLIANCE WITH THE PROVISIONS
GIVING RISE TO SUCH REMEDY. EXCEPT AS OTHERWISE SPECIFICALLY SET FORTH HEREIN,
NOTHING HEREIN SHALL LIMIT A HOLDER'S RIGHT TO PURSUE ACTUAL DAMAGES FOR ANY
FAILURE BY THE COMPANY TO COMPLY WITH THE TERMS OF THIS CERTIFICATE OF
DESIGNATIONS. THE COMPANY COVENANTS TO EACH HOLDER THAT THERE SHALL BE NO
CHARACTERIZATION CONCERNING THIS INSTRUMENT OTHER THAN AS EXPRESSLY PROVIDED
HEREIN. AMOUNTS SET FORTH OR PROVIDED FOR HEREIN WITH RESPECT TO PAYMENTS,
CONVERSION AND THE LIKE (AND THE COMPUTATION THEREOF) SHALL BE THE AMOUNTS TO BE
RECEIVED BY THE HOLDER THEREOF AND SHALL NOT, EXCEPT AS EXPRESSLY PROVIDED
HEREIN, BE SUBJECT TO ANY OTHER OBLIGATION OF THE