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(F), 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 WARRANT SHARES SOLD, ASSIGNED OR TRANSFERRED PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT OR IN COMPLIANCE WITH 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.
THE OBLIGATION OF THE COMPANY HEREUNDER TO ISSUE AND SELL THE
PREFERRED SHARES 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:
(I)
SUCH BUYER AND EACH OTHER 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 AND EACH OTHER BUYER SHALL HAVE
DELIVERED TO THE COMPANY THE PURCHASE PRICE (LESS, IN THE CASE OF BAYSTAR
CAPITAL II, L.P., THE AMOUNTS WITHHELD PURSUANT TO SECTION 4(G)) FOR THE
PREFERRED SHARES AND THE RELATED WARRANTS BEING PURCHASED BY SUCH BUYER AND EACH
OTHER BUYER AT THE CLOSING BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE FUNDS
PURSUANT TO THE WIRE INSTRUCTIONS PROVIDED BY THE COMPANY.
(III)
THE REPRESENTATIONS AND WARRANTIES OF SUCH
BUYER SHALL BE TRUE AND CORRECT IN ALL MATERIAL 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), AND SUCH BUYER
SHALL HAVE PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS (EXCEPT
FOR COVENANTS, AGREEMENTS AND