HEREIN REQUIRED TO BE PERFORMED BY IT, AND ANY BREACH OF ANY COVENANT,
AGREEMENT, WARRANTY OR REPRESENTATION MAY BE WAIVED, ONLY IF THE COMPANY HAS
OBTAINED THE WRITTEN CONSENT OR WAIVER OF THE HOLDER. NO COURSE OF DEALING
BETWEEN OR AMONG ANY PERSONS HAVING ANY INTEREST IN THE WARRANT AGREEMENT WILL
BE DEEMED EFFECTIVE TO MODIFY, AMEND OR DISCHARGE ANY PART OF THE WARRANT
AGREEMENT OR ANY RIGHTS OR OBLIGATIONS OF ANY PERSON UNDER OR BY REASON OF THE
WARRANT AGREEMENT.
25.
EXECUTION.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE COUNTERPARTS, ALL OF
WHICH WHEN TAKEN TOGETHER SHALL BE CONSIDERED ONE AND THE SAME AGREEMENT AND
SHALL BECOME EFFECTIVE WHEN COUNTERPARTS HAVE BEEN SIGNED BY EACH PARTY AND
DELIVERED TO THE OTHER PARTY, IT BEING UNDERSTOOD THAT BOTH PARTIES NEED NOT
SIGN THE SAME COUNTERPART.
IN THE EVENT THAT ANY
SIGNATURE IS DELIVERED BY FACSIMILE TRANSMISSION (OR ELECTRONIC TRANSMISSION OF
PDF FILE), SUCH SIGNATURE SHALL CREATE A VALID AND BINDING OBLIGATION OF THE
PARTY EXECUTING (OR ON WHOSE BEHALF SUCH SIGNATURE IS EXECUTED) WITH THE SAME
FORCE AND EFFECT AS IF SUCH FACSIMILE (OR PDF FILE) SIGNATURE PAGE WERE AN
ORIGINAL THEREOF.
26.
SEVERABILITY.
IF ANY PROVISION OF THIS AGREEMENT IS HELD TO BE INVALID OR
UNENFORCEABLE IN ANY RESPECT, THE VALIDITY AND ENFORCEABILITY OF THE REMAINING
TERMS AND PROVISIONS OF THIS AGREEMENT SHALL NOT IN ANY WAY BE AFFECTED OR
IMPAIRED THEREBY AND THE PARTIES WILL ATTEMPT TO AGREE UPON A VALID AND
ENFORCEABLE PROVISION THAT IS A REASONABLE SUBSTITUTE THEREFOR, AND UPON SO
AGREEING, SHALL INCORPORATE SUCH SUBSTITUTE PROVISION IN THIS AGREEMENT.
27.
REPLACEMENT OF SECURITIES.
IF ANY CERTIFICATE OR INSTRUMENT EVIDENCING ANY
SERIES B PREFERRED STOCK, UNIT WARRANT, COMMON STOCK PURCHASE WARRANT OR
SERIES B UNDERLYING SHARES IS MUTILATED, LOST, STOLEN OR DESTROYED, THE COMPANY
SHALL ISSUE OR CAUSE TO BE ISSUED IN EXCHANGE AND SUBSTITUTION FOR AND UPON
CANCELLATION THEREOF, OR IN LIEU OF AND SUBSTITUTION THEREFOR, A NEW CERTIFICATE
OR INSTRUMENT, BUT ONLY UPON RECEIPT OF EVIDENCE REASONABLY SATISFACTORY TO THE
COMPANY OF SUCH LOSS, THEFT OR DESTRUCTION AND CUSTOMARY AND REASONABLE
INDEMNITY, IF REQUESTED.
THE APPLICANTS FOR A NEW CERTIFICATE OR INSTRUMENT
UNDER SUCH CIRCUMSTANCES SHALL ALSO PAY ANY REASONABLE THIRD-PARTY COSTS
ASSOCIATED WITH THE ISSUANCE OF SUCH REPLACEMENT CERTIFICATE OR INSTRUMENT.
28.
REMEDIES.
IN ADDITION TO BEING ENTITLED TO EXERCISE ALL RIGHTS PROVIDED HEREIN
OR GRANTED BY LAW, INCLUDING RECOVERY OF DAMAGES, EACH HOLDER AND THE COMPANY
WILL BE ENTITLED TO SPECIFIC PERFORMANCE UNDER THE TRANSACTION DOCUMENTS AND
THIS AGREEMENT.
THE PARTIES AGREE THAT MONETARY DAMAGES MAY NOT BE ADEQUATE
COMPENSATION FOR ANY LOSS INCURRED BY REASON OF ANY BREACH OF OBLIGATIONS
DESCRIBED IN THE FOREGOING SENTENCE AND HEREBY AGREES TO WAIVE IN ANY ACTION FOR
SPECIFIC PERFORMANCE OF ANY SUCH OBLIGATION THE DEFENSE THAT A REMEDY AT LAW
WOULD BE ADEQUATE.
29.
LIQUIDATED DAMAGES.
THE COMPANY'S OBLIGATION TO PAY ANY PARTIAL LIQUIDATED
DAMAGES OR OTHER AMOUNTS OWING UNDER THE TRANSACTION DOCUMENTS OR THIS AGREEMENT
IS A CONTINUING OBLIGATION OF