SUCH INVESTOR'S NOTE (THE
"CLOSING").
(B)
CLOSING DATE.
THE DATE AND TIME OF THE CLOSING (THE "CLOSING
DATE") SHALL BE 10:00 A.M., NEW YORK TIME, ON THE DATE HEREOF, SUBJECT TO
NOTIFICATION OF SATISFACTION (OR WAIVER) OF THE CONDITIONS TO THE CLOSING SET
FORTH IN SECTIONS 5 AND 6 BELOW (OR SUCH LATER DATE AS IS MUTUALLY AGREED TO BY
THE COMPANY AND THE INVESTOR).
THE CLOSING SHALL OCCUR ON THE CLOSING DATE AT
THE OFFICES OF SCHULTE ROTH & ZABEL LLP, 919 THIRD AVENUE, NEW YORK, NEW YORK
10022.
(C)
DELIVERIES.
ON THE CLOSING DATE, (I) THE COMPANY (A) SHALL ISSUE
(WITHOUT VALID DELIVERY BY THE INVESTOR OF THE APPLICABLE CONVERSION NOTICE AS
REQUIRED PURSUANT TO THE NOTES) THE INVESTOR CONVERSION SHARES BY CAUSING ITS
TRANSFER AGENT TO CREDIT THE AGGREGATE NUMBER OF THE INVESTOR CONVERSION SHARES
TO THE INVESTOR'S OR ITS DESIGNEE'S BALANCE ACCOUNT WITH THE DEPOSITORY TRUST
COMPANY THROUGH ITS DEPOSIT WITHDRAWAL AGENT COMMISSION SYSTEM AND DESIGNATED IN
WRITING BY THE INVESTOR TO THE COMPANY CONCURRENTLY HEREWITH (THE "INVESTOR DTC
ACCOUNT") AND (B) SHALL ISSUE AND DELIVER TO THE INVESTOR (IN THE PRINCIPAL
AMOUNTS AS THE INVESTOR SHALL REQUEST), THE INVESTOR'S AMENDED AND RESTATED
NOTE, DULY EXECUTED ON BEHALF OF THE COMPANY AND REGISTERED IN THE NAME OF THE
INVESTOR OR ITS DESIGNEE, AND (II) THE INVESTOR SHALL TAKE SUCH ACTION AS IS
NECESSARY TO CAUSE TO BE DELIVERED TO THE COMPANY THE INVESTOR'S NOTE FOR
CANCELLATION.
2.
AMENDMENTS
TO TRANSACTION DOCUMENTS.
(A)
SECURITIES PURCHASE AGREEMENT.
THE SECURITIES PURCHASE AGREEMENT
IS HEREBY AMENDED AS FOLLOWS:
(I)
ALL REFERENCES TO "NOTES" ARE HEREBY REPLACED WITH "AMENDED AND
RESTATED NOTES"; AND
(II)
THE DEFINED TERM "TRANSACTION DOCUMENTS" IS HEREBY AMENDED TO
INCLUDE THIS AGREEMENT.
(B)
REGISTRATION RIGHTS AGREEMENT.
THE REGISTRATION RIGHTS AGREEMENT
IS HEREBY AMENDED AS FOLLOWS:
(I)
THE TERM "REGISTRABLE SECURITIES" IS HEREBY REPLACED BY THE
FOLLOWING:
2
(A)
"REGISTRABLE SECURITIES" MEANS (I) THE CONVERSION SHARES ISSUED OR
ISSUABLE UPON CONVERSION OF THE NOTES AND THE AMENDED AND RESTATED NOTES, (II)
THE INTEREST SHARES (AS DEFINED IN THE AMENDED AND RESTATED NOTES) ISSUED OR
ISSUABLE UNDER THE AMENDED AND RESTATED NOTES, (III) THE WARRANT SHARES ISSUED
OR ISSUABLE UPON EXERCISE OF THE WARRANTS, (IV) THE SHARES ISSUABLE UPON
EXERCISE OF THE WARRANT GRANTED TO RODMAN & RENSHAW, INC. IN CONNECTION WITH THE
EXECUTION OF THE SECURITIES PURCHASE AGREEMENT AND (V) ANY SHARES OF CAPITAL
STOCK ISSUED OR ISSUABLE WITH RESPECT TO THE CONVERSION SHARES, THE INTEREST
SHARES, THE NOTES, THE AMENDED AND RESTATED NOTES, THE WARRANT SHARES OR THE
WARRANTS AS A RESULT OF ANY STOCK SPLIT, STOCK DIVIDEND, RECAPITALIZATION,
EXCHANGE OR SIMILAR EVENT OR OTHERWISE, WITHOUT REGARD TO ANY LIMITATIONS ON
CONVERSIONS OF THE NOTES OR THE AMENDED AND RESTATED NOTES OR EXERCISE OF THE
WARRANTS.
(II)
THE DEFINED TERM "NOTES" IS HEREBY AMENDED TO REPLACE THE TERM
"NOTES" WITH THE TERM "NOTES AND AMENDED AND RESTATED NOTES".
3.
REPRESENTATIONS AND WARRANTIES
(A)
INVESTOR BRING DOWN.
THE INVESTOR HEREBY REPRESENTS AND WARRANTS
AS TO ITSELF ONLY