OR DENIED IN THE COMPANY'S SOLE AND ABSOLUTE DISCRETION;
(Y) THE COMPANY'S OBLIGATIONS UNDER THIS SECTION 4.1 (INCLUDING, WITHOUT
LIMITATION, ITS OBLIGATIONS TO PROVIDE MFN NOTICES OR ANY OTHER NOTICE TO OR
ALLOW THE PARTICIPATION OF THE HOLDER IN ANY OTHER EXCHANGE) SHALL AUTOMATICALLY
TERMINATE IN FULL IF AND WHEN THE HOLDER OR ITS PERMITTED ASSIGNEES AND
TRANSFEREES, AS APPLICABLE, CEASE TO HOLD AT LEAST $1,000,000 AGGREGATE
PRINCIPAL AMOUNT OF MFN NOTES; AND (Z) THE COMPANY HEREBY COVENANTS AND AGREES
THAT ANY OTHER EXCHANGE WILL BE SUBJECT TO APPLICABLE LIMITATIONS ON CONVERSION
THAT ARE NO LESS RESTRICTIVE THAN THE LIMITATIONS ON CONVERSION CONTAINED IN THE
INDENTURE.
SECTION 4.2
HOLDING PERIOD.
FOR THE PURPOSES OF RULE 144 UNDER THE
SECURITIES ACT (OR A SUCCESSOR RULE THERETO), THE COMPANY ACKNOWLEDGES (ASSUMING
THE ACCURACY OF THE REPRESENTATIONS AND WARRANTIES OF THE HOLDER IN SECTIONS 2.5
AND 2.8 HEREOF AND THE COMPLIANCE BY THE HOLDER WITH ITS COVENANTS AND
AGREEMENTS SET FORTH HEREIN) THAT, FOR PURPOSES OF RULE 144(D)(3)(II) UNDER THE
SECURITIES ACT, THE NEW NOTES (INCLUDING THE CORRESPONDING UNDERLYING COMMON
STOCK) WILL BE DEEMED TO HAVE BEEN ACQUIRED AT THE SAME TIME AS THE OLD NOTES,
AND THE COMPANY AGREES, EXCEPT AS MAY OTHERWISE BE REQUIRED BY APPLICABLE LAW,
NOT TO TAKE A POSITION CONTRARY TO THIS SECTION 4.2.
THE COMPANY AGREES TO TAKE
ALL COMMERCIALLY REASONABLE ACTIONS, INCLUDING, WITHOUT LIMITATION, THE ISSUANCE
BY ITS LEGAL COUNSEL OF ANY NECESSARY LEGAL OPINIONS, NECESSARY TO ISSUE SHARES
OF UNDERLYING COMMON STOCK WITHOUT ANY RESTRICTIVE LEGEND WITHOUT THE NEED FOR
ANY ACTION BY THE HOLDER; PROVIDED, HOWEVER, THAT AS A CONDITION PRECEDENT TO
THE FOREGOING, THE HOLDER SHALL TAKE ALL COMMERCIALLY REASONABLE ACTIONS,
INCLUDING, WITHOUT LIMITATION, PROVIDING CUSTOMARY REPRESENTATIONS AND
WARRANTIES REASONABLY REQUESTED BY THE COMPANY'S LEGAL COUNSEL IN CONNECTION
WITH RENDERING ANY SUCH NECESSARY LEGAL OPINIONS.
SECTION 4.3
DISCLOSURE OF TRANSACTIONS AND OTHER MATERIAL
INFORMATION.
ON OR BEFORE 8:30 A.M., NEW YORK CITY TIME, ON THE SECOND (2ND)
BUSINESS DAY FOLLOWING THE CLOSING, THE COMPANY SHALL FILE A CURRENT REPORT ON
FORM 8-K DESCRIBING THE TERMS OF THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT
IN THE FORM AND AS MAY BE REQUIRED BY THE EXCHANGE ACT, ATTACHING THE MATERIAL
TRANSACTION DOCUMENTS NOT PREVIOUSLY FILED (INCLUDING, WITHOUT LIMITATION, THIS
AGREEMENT AND THE INDENTURE) (INCLUDING ALL ATTACHMENTS, THE "8-K FILING").
THE
COMPANY SHALL FILE ITS QUARTERLY REPORT ON FORM 10-Q FOR THE QUARTER ENDED
JUNE 27, 2008 (THE "10-Q FILING") ON OR BEFORE THE DEADLINE APPLICABLE TO SUCH
10-Q FILING AS SET FORTH IN THE RULES AND REGULATIONS OF THE SEC (INCLUDING ANY
EXTENSION PROVIDED UNDER RULE 12B-25 THEREUNDER).
THE COMPANY ACKNOWLEDGES AND
AGREES THAT, FROM AND AFTER THE FILING OF THE 10-Q FILING WITH THE SEC, ANY
MATERIAL, NONPUBLIC INFORMATION PROVIDED BY OR ON BEHALF OF THE COMPANY TO THE
HOLDER PRIOR TO SUCH TIME SHALL NO LONGER CONSTITUTE MATERIAL, NONPUBLIC
INFORMATION, WHETHER DUE TO INFORMATION PUBLICLY DISCLOSED BY THE COMPANY IN THE
10-Q FILING OR OTHERWISE.
THE COMPANY SHALL NOT, AND SHALL CAUSE EACH OF