NO LATER THAN
TEN BUSINESS DAYS FROM THE TIME IT RECEIVES THE DISPUTED DETERMINATIONS OR
CALCULATIONS. SUCH INVESTMENT BANK'S OR ACCOUNTANT'S DETERMINATION OR
CALCULATION, AS THE CASE MAY BE, SHALL BE BINDING UPON ALL PARTIES ABSENT
DEMONSTRABLE ERROR.
14.
REMEDIES, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. THE
REMEDIES PROVIDED IN THIS WARRANT SHALL BE CUMULATIVE AND IN ADDITION TO ALL
OTHER REMEDIES AVAILABLE UNDER THIS WARRANT AND THE OTHER TRANSACTION DOCUMENTS,
AT LAW OR IN EQUITY (INCLUDING A DECREE OF SPECIFIC PERFORMANCE AND/OR OTHER
INJUNCTIVE RELIEF), AND NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE HOLDER RIGHT
TO PURSUE ACTUAL DAMAGES FOR ANY FAILURE BY THE COMPANY TO COMPLY WITH THE TERMS
OF THIS WARRANT. THE COMPANY ACKNOWLEDGES THAT A BREACH BY IT OF ITS OBLIGATIONS
HEREUNDER WILL CAUSE IRREPARABLE HARM TO THE HOLDER AND THAT THE REMEDY AT LAW
FOR ANY SUCH BREACH MAY BE INADEQUATE. THE COMPANY THEREFORE AGREES THAT, IN THE
EVENT OF ANY SUCH BREACH OR THREATENED BREACH, THE HOLDER OF THIS WARRANT SHALL
BE ENTITLED, IN ADDITION TO ALL OTHER AVAILABLE REMEDIES, TO AN INJUNCTION
RESTRAINING ANY BREACH, WITHOUT THE NECESSITY OF SHOWING ECONOMIC LOSS AND
WITHOUT ANY BOND OR OTHER SECURITY BEING REQUIRED.
15.
TRANSFER.
THIS WARRANT MAY BE OFFERED FOR SALE, SOLD,
TRANSFERRED OR ASSIGNED WITHOUT THE CONSENT OF THE COMPANY, EXCEPT AS MAY
OTHERWISE BE REQUIRED BY SECTION 2(F) OF THE SECURITIES PURCHASE AGREEMENT.
16.
CERTAIN DEFINITIONS. FOR PURPOSES OF THIS WARRANT, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A)
"BLACK SCHOLES VALUE" MEANS THE VALUE OF
THIS WARRANT BASED ON THE BLACK AND SCHOLES OPTION PRICING MODEL OBTAINED FROM
THE "OV" FUNCTION ON BLOOMBERG DETERMINED AS OF THE DAY IMMEDIATELY FOLLOWING
THE PUBLIC ANNOUNCEMENT OF THE APPLICABLE FUNDAMENTAL TRANSACTION AND REFLECTING
(I) A RISK-FREE INTEREST RATE CORRESPONDING TO THE U.S. TREASURY RATE FOR A
PERIOD EQUAL TO THE REMAINING TERM OF THIS WARRANT AS OF SUCH DATE OF REQUEST
AND (II) AN EXPECTED VOLATILITY EQUAL TO THE GREATER OF 60% AND THE 100 DAY
VOLATILITY OBTAINED FROM THE HVT FUNCTION ON BLOOMBERG.
(B)
"BLOOMBERG" MEANS BLOOMBERG FINANCIAL
MARKETS.
(C)
"BUSINESS DAY" MEANS ANY DAY OTHER THAN
SATURDAY, SUNDAY OR OTHER DAY ON WHICH COMMERCIAL BANKS IN THE CITY OF NEW YORK
ARE AUTHORIZED OR REQUIRED BY LAW TO REMAIN CLOSED.
(D)
"CLOSING BID PRICE" AND "CLOSING SALE PRICE"
MEANS, FOR ANY SECURITY AS OF ANY DATE, THE LAST CLOSING BID PRICE AND LAST
CLOSING TRADE PRICE, RESPECTIVELY, FOR SUCH SECURITY ON THE PRINCIPAL MARKET, AS
REPORTED BY BLOOMBERG, OR, IF THE PRINCIPAL MARKET BEGINS TO OPERATE ON AN
EXTENDED HOURS BASIS AND DOES NOT DESIGNATE THE CLOSING BID PRICE OR THE
15
CLOSING TRADE PRICE, AS THE CASE MAY BE, THEN THE LAST BID PRICE OR LAST TRADE
PRICE, RESPECTIVELY, OF SUCH SECURITY PRIOR TO 4:00:00 P.M., NEW YORK TIME, AS
REPORTED BY BLOOMBERG, OR, IF THE PRINCIPAL MARKET IS NOT THE PRINCIPAL
SECURITIES EXCHANGE OR TRADING MARKET FOR SUCH SECURITY, THE LAST CLOSING BID
PRICE OR LAST TRADE