(I) TO GOLDMAN SACHS, ALL ACCRUED AND UNPAID INTEREST UNDER THE GS EXISTING
NOTE, AND (II) TO SYNTEK, ALL ACCRUED AND UNPAID INTEREST UNDER THE SYNTEK
EXISTING NOTE (COLLECTIVELY, THE "INTEREST PAYMENT"), IN EACH CASE, IN UNITED
STATES DOLLARS AND IN IMMEDIATELY AVAILABLE FUNDS, BY WIRE TRANSFER TO AN
ACCOUNT DESIGNATED IN WRITING TO THE COMPANY BY THE APPLICABLE INVESTOR.
THE
COMPANY SHALL USE THE REMAINING NET PROCEEDS FROM THE SALE OF THE SECURITIES FOR
WORKING CAPITAL AND GENERAL CORPORATE PURPOSES.
PENDING USE FOR WORKING CAPITAL
AND GENERAL CORPORATE PURPOSES, THE COMPANY INTENDS TO INVEST THE NET PROCEEDS
FROM THE SALE OF THE SECURITIES IN SHORT-TERM, INTEREST-BEARING,
15
INVESTMENT-GRADE SECURITIES, OR AS OTHERWISE PURSUANT TO THE COMPANY'S CUSTOMARY
INVESTMENT POLICIES.
PROVIDED THAT THE CLOSING HAS OCCURRED IN ACCORDANCE WITH
THE TERMS OF THIS AGREEMENT, THEN, EFFECTIVE UPON RECEIPT OF THE INTEREST
PAYMENT IN ACCORDANCE WITH THE TERMS OF THIS SECTION 4.6, (I) SYNTEK HEREBY
WAIVES ANY DEFAULT BY THE COMPANY UNDER THE SYNTEK EXISTING NOTE AND
(II) GOLDMAN SACHS HEREBY WAIVES ANY DEFAULT BY THE COMPANY UNDER THE GS
EXISTING NOTE.
4.7
SHORT SALES.
EACH INVESTOR REPRESENTS, WARRANTS AND AGREES THAT,
SINCE THE DATE ON WHICH ANY OF THE COMPANY OR FIRST CONTACTED SUCH INVESTOR
ABOUT THE POTENTIAL SALE OF THE SECURITIES, IT HAS NOT ENGAGED IN ANY
TRANSACTIONS IN THE SECURITIES OF THE COMPANY (INCLUDING, WITHOUT LIMITATION,
ANY SHORT SALES INVOLVING THE COMPANY'S SECURITIES).
SUCH INVESTOR COVENANTS
THAT IT WILL NOT ENGAGE IN ANY TRANSACTIONS IN THE SECURITIES OF THE COMPANY
(INCLUDING SHORT SALES) PRIOR TO THE TIME THAT THE TRANSACTIONS CONTEMPLATED BY
THIS AGREEMENT ARE PUBLICLY DISCLOSED.
SUCH INVESTOR FURTHER COVENANTS THAT IT
WILL NOT ENGAGE IN ANY SHORT SALES IN 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-L(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.
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 AND EACH SUBSIDIARY, AS APPLICABLE, SHALL HAVE DULY
EXECUTED AND DELIVERED TO EACH INVESTOR:
(I)
A CONVERTIBLE NOTE IN FAVOR OF SUCH INVESTOR IN THE AGGREGATE
PRINCIPAL AMOUNT AS IS SET FORTH OPPOSITE SUCH INVESTOR'S NAME ON THE SCHEDULE
OF INVESTORS;
(II)
THE GUARANTY AND SECURITY AGREEMENT SIGNED ON BEHALF OF THE
COMPANY, AND EACH SUBSIDIARY PARTY THERETO, TOGETHER WITH THE FOLLOWING (SUBJECT
TO THE PROVISIONS