OR TRANSFER INVOLVES CONVERSION SHARES, THE
INTEREST SHARES OR WARRANT 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.
24
6.
CONDITIONS TO THE COMPANY'S OBLIGATION TO SELL.
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:
(A)
SUCH BUYER SHALL HAVE EXECUTED EACH OF THE TRANSACTION DOCUMENTS
TO WHICH IT IS A PARTY AND DELIVERED THE SAME TO THE COMPANY
(B)
SUCH BUYER AND EACH OTHER BUYER SHALL HAVE DELIVERED TO THE
COMPANY THE PURCHASE PRICE (LESS, IN THE CASE OF PORTSIDE GROWTH AND OPPORTUNITY
FUND, 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 TRANSFER
OF IMMEDIATELY AVAILABLE FUNDS PURSUANT TO THE WIRE INSTRUCTIONS PROVIDED BY THE
COMPANY.
(C)
THE REPRESENTATIONS AND WARRANTIES OF SUCH BUYER SHALL BE TRUE AND
CORRECT IN ALL MATERIAL RESPECTS (EXCEPT FOR THOSE REPRESENTATIONS AND
WARRANTIES THAT ARE QUALIFIED BY MATERIALITY OR MATERIAL ADVERSE EFFECT, WHICH
SHALL BE TRUE AND CORRECT IN ALL RESPECTS) AS OF THE DATE WHEN MADE AND AS OF
THE CLOSING DATE AS THOUGH MADE AT THAT TIME (EXCEPT FOR REPRESENTATIONS AND
WARRANTIES THAT SPEAK AS OF A SPECIFIC DATE, WHICH SHALL BE TRUE AND CORRECT AS
OF SUCH SPECIFIED DATE), AND SUCH BUYER SHALL HAVE PERFORMED, SATISFIED AND
COMPLIED IN ALL MATERIAL RESPECTS WITH THE COVENANTS, AGREEMENTS AND CONDITIONS
REQUIRED BY THIS AGREEMENT TO BE PERFORMED, SATISFIED OR COMPLIED WITH BY SUCH
BUYER AT OR PRIOR TO THE CLOSING DATE.
7.
CONDITIONS TO EACH BUYER'S OBLIGATION TO PURCHASE.
THE
OBLIGATION OF EACH BUYER HEREUNDER TO PURCHASE THE NOTES AND THE RELATED
WARRANTS 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 EACH BUYER'S SOLE BENEFIT AND MAY BE