THE COMPANY'S SECURITIES FOR A PERIOD OF 180 DAYS FROM THE
CLOSING DATE.
FOR PURPOSES HEREOF, "SHORT SALES" INCLUDE, WITHOUT LIMITATION,
ALL "SHORT SALES" AS DEFINED IN RULE 3B-3 OF THE EXCHANGE ACT AND RULE 200
PROMULGATED UNDER REGULATION SHO UNDER THE EXCHANGE ACT, WHETHER OR NOT AGAINST
THE BOX, AND ALL TYPES OF DIRECT AND INDIRECT STOCK PLEDGES, FORWARD SALES
CONTRACTS, OPTIONS, PUTS, CALLS, SHORT SALES, SWAPS, "PUT EQUIVALENT POSITIONS"
(AS DEFINED IN RULE 16A-1(H) UNDER THE EXCHANGE ACT) AND SIMILAR ARRANGEMENTS
(INCLUDING ON A TOTAL RETURN BASIS), AND SALES AND OTHER TRANSACTIONS THROUGH
NON-US BROKER DEALERS OR FOREIGN REGULATED BROKERS.
15
4.8
. WAIVER; TERMINATION OF LIENS.
UPON REDEMPTION, EACH HOLDER OF THE 2006
NOTES IRREVOCABLY WAIVES ANY DEFAULT OR BREACH ARISING FROM OR RELATED TO THE
2006 NOTES AND THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING, WITHOUT
EXCEPTION, THE REGISTRATION RIGHTS AGREEMENT DATED MARCH 23, 2006, THE WARRANT
AND THE 2006 NOTES.
UPON REDEMPTION, EACH INVESTOR PREVIOUSLY HOLDING 2006
NOTES SHALL TAKE ALL ACTION REASONABLY NECESSARY TO TERMINATE ANY LIENS ARISING
FROM OR RELATING TO THE 2006 NOTES.
ARTICLE V
CONDITIONS
5.1
CONDITIONS PRECEDENT TO EACH INVESTOR'S OBLIGATION TO PURCHASE.
THE
OBLIGATION OF EACH INVESTOR TO PURCHASE THE SECURITIES AT THE CLOSING IS SUBJECT
TO THE SATISFACTION OR WAIVER BY SUCH INVESTOR, AT OR BEFORE THE CLOSING, OF
EACH OF THE FOLLOWING CONDITIONS:
(A)
THE COMPANY SHALL HAVE DULY EXECUTED AND DELIVERED TO EACH
INVESTOR:
(I)
ONE OR MORE CONVERTIBLE NOTES WITH AN AGGREGATE PRINCIPAL AMOUNT AS IS
SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON THE SCHEDULE OF INVESTORS; AND
(II)
THE REGISTRATION RIGHTS AGREEMENT.
(B)
SUCH INVESTOR SHALL HAVE RECEIVED THE OPINION FROM THE COMPANY'S
GENERAL COUNSEL, DATED AS OF THE CLOSING DATE, IN SUBSTANTIALLY THE FORM OF
EXHIBIT F ATTACHED HERETO.
(C)
THE COMPANY SHALL HAVE DELIVERED A CERTIFICATE, EXECUTED ON BEHALF
OF THE COMPANY BY ITS SECRETARY, DATED AS OF THE CLOSING DATE, CERTIFYING THE
RESOLUTIONS ADOPTED BY THE BOARD OF DIRECTORS OF THE COMPANY APPROVING THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS AND THE ISSUANCE OF THE
SECURITIES, CERTIFYING THE CURRENT VERSIONS OF THE CERTIFICATE AND BYLAWS OF THE
COMPANY AND CERTIFYING AS TO THE SIGNATURES AND AUTHORITY OF PERSONS SIGNING
THIS AGREEMENT AND RELATED DOCUMENTS ON BEHALF OF THE COMPANY.
(D)
THE REPRESENTATIONS AND WARRANTIES OF THE COMPANY 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) AND THE COMPANY SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH THE COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED,
SATISFIED OR COMPLIED WITH BY THE COMPANY AT OR PRIOR TO THE CLOSING DATE.
SUCH
INVESTOR SHALL HAVE RECEIVED A CERTIFICATE, EXECUTED BY THE CHIEF