OF ANY WARRANTY BY
THE PURCHASER IN THIS AGREEMENT OR IN ANY EXHIBITS OR SCHEDULES ATTACHED HERETO
OR ANY RELATED AGREEMENT; OR (II) ANY BREACH OR DEFAULT IN PERFORMANCE BY THE
PURCHASER OF ANY COVENANT OR UNDERTAKING TO BE PERFORMED BY THE PURCHASER
HEREUNDER, OR ANY OTHER AGREEMENT ENTERED INTO BY THE COMPANY AND THE PURCHASER
RELATING HERETO.
26
9.
CONVERSION OF CONVERTIBLE NOTE.
9.1
MECHANICS OF CONVERSION.
(A)
PROVIDED THE PURCHASER HAS NOTIFIED THE COMPANY OF THE PURCHASER'S
INTENTION TO SELL THE NOTE SHARES AND THE NOTE SHARES ARE INCLUDED IN AN
EFFECTIVE REGISTRATION STATEMENT OR ARE OTHERWISE EXEMPT FROM REGISTRATION WHEN
SOLD:
(I) UPON THE CONVERSION OF THE NOTE OR PART THEREOF, THE COMPANY SHALL,
AT ITS OWN COST AND EXPENSE, TAKE ALL NECESSARY ACTION (INCLUDING THE ISSUANCE
OF AN OPINION OF COUNSEL REASONABLY ACCEPTABLE TO THE PURCHASER FOLLOWING A
REQUEST BY THE PURCHASER) TO ASSURE THAT THE COMPANY'S TRANSFER AGENT SHALL
ISSUE SHARES OF THE COMPANY'S COMMON STOCK IN THE NAME OF THE PURCHASER (OR ITS
NOMINEE) OR SUCH OTHER PERSONS AS DESIGNATED BY THE PURCHASER IN ACCORDANCE WITH
SECTION 9.1(B) HEREOF AND IN SUCH DENOMINATIONS TO BE SPECIFIED REPRESENTING THE
NUMBER OF NOTE SHARES ISSUABLE UPON SUCH CONVERSION; AND (II) THE COMPANY
WARRANTS THAT NO INSTRUCTIONS OTHER THAN THESE INSTRUCTIONS HAVE BEEN OR WILL BE
GIVEN TO THE TRANSFER AGENT OF THE COMPANY'S COMMON STOCK AND THAT AFTER THE
EFFECTIVENESS DATE (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) THE NOTE
SHARES ISSUED WILL BE FREELY TRANSFERABLE SUBJECT TO THE PROSPECTUS DELIVERY
REQUIREMENTS OF THE SECURITIES ACT AND THE PROVISIONS OF THIS AGREEMENT, AND
WILL NOT CONTAIN A LEGEND RESTRICTING THE RESALE OR TRANSFERABILITY OF THE NOTE
SHARES.
(B)
THE PURCHASER WILL GIVE NOTICE OF ITS DECISION TO EXERCISE ITS
RIGHT TO CONVERT THE NOTE OR PART THEREOF BY TELECOPYING OR OTHERWISE DELIVERING
AN EXECUTED AND COMPLETED NOTICE OF THE NUMBER OF SHARES TO BE CONVERTED TO THE
COMPANY (THE "NOTICE OF CONVERSION").
THE PURCHASER WILL NOT BE REQUIRED TO
SURRENDER THE NOTE UNTIL THE PURCHASER RECEIVES A CREDIT TO THE ACCOUNT OF THE
PURCHASER'S PRIME BROKER THROUGH THE DWAC SYSTEM (AS DEFINED BELOW),
REPRESENTING THE NOTE SHARES OR UNTIL THE NOTE HAS BEEN FULLY SATISFIED.
EACH
DATE ON WHICH A NOTICE OF CONVERSION IS TELECOPIED OR DELIVERED TO THE COMPANY
IN ACCORDANCE WITH THE PROVISIONS HEREOF SHALL BE DEEMED A "CONVERSION DATE."
PURSUANT TO THE TERMS OF THE NOTICE OF CONVERSION, THE COMPANY WILL ISSUE
INSTRUCTIONS TO THE TRANSFER AGENT ACCOMPANIED BY AN OPINION OF COUNSEL WITHIN
ONE (1) BUSINESS DAY OF THE DATE OF THE DELIVERY TO THE COMPANY OF THE
NOTICE
OF CONVERSION AND SHALL CAUSE THE TRANSFER AGENT TO TRANSMIT THE CERTIFICATES
REPRESENTING THE CONVERSION SHARES TO THE HOLDER BY CREDITING THE ACCOUNT OF THE
PURCHASER'S PRIME BROKER WITH THE DEPOSITORY TRUST COMPANY ("DTC") THROUGH ITS
DEPOSIT WITHDRAWAL AGENT COMMISSION ("DWAC") SYSTEM WITHIN THREE (3) BUSINESS
DAYS AFTER RECEIPT BY THE COMPANY OF THE NOTICE OF CONVERSION (THE "DELIVERY
DATE").
(C)
THE