REGISTERED IN THE NAME OF EACH
BUYER OR ITS RESPECTIVE NOMINEE(S), FOR THE CONVERSION SHARES AND THE INTEREST
SHARES, IF ANY IN SUCH AMOUNTS AS SPECIFIED FROM TIME TO TIME BY EACH BUYER TO
THE COMPANY UPON CONVERSION OF THE NOTES IN THE FORM OF EXHIBIT G ATTACHED
HERETO (THE "IRREVOCABLE TRANSFER AGENT INSTRUCTIONS").
THE COMPANY WARRANTS
THAT NO INSTRUCTION OTHER THAN THE IRREVOCABLE TRANSFER AGENT INSTRUCTIONS
REFERRED TO IN THIS SECTION 5(B), AND STOP TRANSFER INSTRUCTIONS TO GIVE EFFECT
TO SECTION 2(J) HEREOF, WILL BE GIVEN BY THE COMPANY TO ITS TRANSFER AGENT, AND
THAT THE SECURITIES SHALL OTHERWISE BE FREELY TRANSFERABLE ON THE BOOKS AND
RECORDS OF THE COMPANY AS AND TO THE EXTENT PROVIDED IN THIS AGREEMENT AND THE
OTHER TRANSACTION DOCUMENTS.
IF A BUYER EFFECTS A SALE, ASSIGNMENT OR TRANSFER
OF THE SECURITIES IN ACCORDANCE WITH SECTION 2(I), THE COMPANY SHALL PERMIT THE
TRANSFER AND SHALL PROMPTLY INSTRUCT ITS TRANSFER AGENT TO ISSUE ONE OR MORE
CERTIFICATES OR CREDIT SHARES TO THE APPLICABLE BALANCE ACCOUNTS AT DTC IN SUCH
NAME AND IN SUCH DENOMINATIONS AS SPECIFIED BY SUCH BUYER TO EFFECT SUCH SALE,
TRANSFER OR ASSIGNMENT.
IN THE EVENT THAT SUCH SALE, ASSIGNMENT OR TRANSFER
INVOLVES CONVERSION SHARES OR INTEREST SHARES SOLD, ASSIGNED OR TRANSFERRED
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR PURSUANT TO RULE 144, THE
TRANSFER AGENT SHALL ISSUE SUCH SECURITIES TO THE BUYER, ASSIGNEE OR TRANSFEREE,
AS THE CASE MAY BE, WITHOUT ANY RESTRICTIVE LEGEND.
THE COMPANY ACKNOWLEDGES
THAT A BREACH BY IT OF ITS OBLIGATIONS HEREUNDER WILL CAUSE IRREPARABLE HARM TO
A BUYER.
ACCORDINGLY, THE COMPANY ACKNOWLEDGES THAT THE REMEDY AT LAW FOR A
BREACH OF ITS OBLIGATIONS UNDER THIS SECTION 5(B) WILL BE INADEQUATE AND AGREES,
IN THE EVENT OF A BREACH OR THREATENED BREACH BY THE COMPANY OF THE PROVISIONS
OF THIS SECTION 5(B), THAT A BUYER SHALL BE ENTITLED, IN ADDITION TO ALL OTHER
AVAILABLE REMEDIES, TO AN ORDER AND/OR INJUNCTION RESTRAINING ANY BREACH AND
REQUIRING IMMEDIATE ISSUANCE AND TRANSFER, WITHOUT THE NECESSITY OF SHOWING
ECONOMIC LOSS AND WITHOUT ANY BOND OR OTHER SECURITY BEING REQUIRED.
6.
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
(A)
CLOSING DATE.
THE OBLIGATION OF THE
COMPANY HEREUNDER TO ISSUE AND SELL THE NOTES AND THE RELATED WARRANTS TO EACH
BUYER AT THE CLOSING IS SUBJECT TO THE SATISFACTION, AT OR BEFORE THE CLOSING
DATE, OF EACH OF THE FOLLOWING CONDITIONS, PROVIDED THAT THESE CONDITIONS ARE
FOR THE COMPANY'S SOLE BENEFIT AND MAY BE WAIVED BY THE COMPANY AT ANY TIME IN
ITS SOLE DISCRETION BY PROVIDING EACH BUYER WITH PRIOR WRITTEN NOTICE THEREOF:
24
(I)
SUCH BUYER SHALL HAVE EXECUTED EACH OF
THE TRANSACTION DOCUMENTS TO WHICH IT IS A PARTY AND DELIVERED THE SAME TO THE
COMPANY.
(II)
SUCH BUYER SHALL HAVE DELIVERED TO THE
COMPANY THE PURCHASE PRICE (LESS, IN THE CASE OF SMITHFIELD FIDUCIARY LLC, THE
AMOUNTS WITHHELD PURSUANT TO SECTION 4(G)) FOR THE NOTES AND THE RELATED
WARRANTS BEING PURCHASED BY SUCH BUYER AT THE CLOSING BY WIRE