AND
MAY EXERCISE EVERY RIGHT AND POWER OF THE COMPANY AND SHALL ASSUME ALL OF THE
OBLIGATIONS OF THE COMPANY UNDER THIS AIR WITH THE SAME EFFECT AS IF SUCH
SUCCESSOR PERSON HAD BEEN NAMED AS THE COMPANY HEREIN; PROVIDED, HOWEVER, THAT
THE PREDECESSOR COMPANY SHALL NOT BE RELIEVED FROM ITS OBLIGATIONS UNDER THE
TRANSACTION DOCUMENTS EXCEPT IN THE CASE OF A FUNDAMENTAL TRANSACTION THAT MEETS
THE REQUIREMENTS OF THIS SECTION.
THE PROVISIONS OF THIS SECTION SHALL APPLY
SIMILARLY AND EQUALLY TO SUCCESSIVE FUNDAMENTAL TRANSACTIONS.
3.
COMPANY'S RIGHT OF MANDATORY FUNDING.
(A)
MANDATORY FUNDING.
IF AT ANY TIME FROM AND
AFTER THE EFFECTIVE DATE (AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) UNTIL
JULY
, 2005(3) (THE "MANDATORY FUNDING ELIGIBILITY DATE"), (I) THE WEIGHTED
AVERAGE PRICE (AS DEFINED IN THE NOTES) OF THE COMMON STOCK EQUALS OR EXCEEDS
$
(4) (SUBJECT TO APPROPRIATE ADJUSTMENTS FOR STOCK SPLITS, STOCK
DIVIDENDS, STOCK COMBINATIONS AND OTHER SIMILAR TRANSACTIONS AFTER THE ISSUANCE
DATE) FOR EACH OF
(3)
Insert date that is 8 months from the date
hereof.
(4)
Insert amount equal to 150% of Conversion
Price specified in the Notes.
3
ANY TWENTY (20) CONSECUTIVE TRADING DAYS (AS DEFINED IN THE NOTES) FOLLOWING THE
MANDATORY FUNDING ELIGIBILITY DATE (THE "MANDATORY FUNDING MEASURING PERIOD")
AND (II) THE AIR EQUITY CONDITIONS (AS DEFINED BELOW) SHALL HAVE BEEN SATISFIED
OR WAIVED IN WRITING BY THE HOLDER DURING THE PERIOD COMMENCING WITH THE
MANDATORY FUNDING NOTICE DATE AND ENDING WITH THE MANDATORY FUNDING DATE (EACH,
AS DEFINED BELOW), THE COMPANY SHALL HAVE THE RIGHT TO REQUIRE THE HOLDER TO
EXERCISE ALL OR ANY DESIGNATED PORTION OF THE AIR AND PURCHASE FROM THE COMPANY,
AT THE EXERCISE PRICE THEN IN EFFECT, ALL OR ANY DESIGNATED PORTION OF THE
ADDITIONAL NOTES IN ACCORDANCE WITH SECTION 1(A) HEREOF AS OF THE MANDATORY
FUNDING DATE (A "MANDATORY FUNDING").
THE COMPANY MAY EXERCISE ITS RIGHT TO
REQUIRE PURCHASE OF ADDITIONAL NOTES UNDER THIS SECTION 3(A) BY DELIVERING
WITHIN NOT MORE THAN TWO TRADING DAYS FOLLOWING THE END OF ANY SUCH MANDATORY
FUNDING MEASURING PERIOD A WRITTEN NOTICE THEREOF BY FACSIMILE AND OVERNIGHT
COURIER TO ALL, BUT NOT LESS THAN ALL, OF THE HOLDERS OF AIRS (THE "MANDATORY
FUNDING NOTICE" AND THE DATE ALL OF THE HOLDERS RECEIVED SUCH NOTICE IS REFERRED
TO AS THE "MANDATORY FUNDING NOTICE DATE").
THE MANDATORY FUNDING NOTICE SHALL
BE IRREVOCABLE.
THE MANDATORY FUNDING NOTICE SHALL STATE (I) THE TRADING DAY
SELECTED FOR THE MANDATORY FUNDING IN ACCORDANCE WITH SECTION 3(A), WHICH
TRADING DAY SHALL BE AT LEAST 20 BUSINESS DAYS BUT NOT MORE THAN 60 BUSINESS
DAYS FOLLOWING THE MANDATORY FUNDING NOTICE DATE (THE "MANDATORY FUNDING DATE"),
(II) THE AGGREGATE AMOUNT OF THE ADDITIONAL NOTES TO BE ISSUED UPON MANDATORY
EXERCISE FROM ALL OF THE HOLDERS OF THE AIRS PURSUANT TO THIS SECTION 3 (AND
ANALOGOUS PROVISIONS UNDER THE OTHER AIRS) AND (III) THE PRINCIPAL AMOUNT OF
ADDITIONAL NOTES TO BE ISSUED.
As used herein, "AIR Equity Conditions" means each of the following conditions:
(i) on each