OF
SUCH SHARES, AS OF THE CLOSE OF BUSINESS ON THE DATE ON WHICH THIS WARRANT SHALL
HAVE BEEN SURRENDERED, THE COMPLETED EXERCISE AGREEMENT SHALL HAVE BEEN
DELIVERED, AND PAYMENT SHALL HAVE BEEN MADE FOR SUCH SHARES AS SET FORTH ABOVE
OR, IF SUCH DATE IS NOT A BUSINESS DATE, ON THE NEXT SUCCEEDING BUSINESS DATE.
THE WARRANT SHARES SO PURCHASED, REPRESENTING THE AGGREGATE NUMBER OF SHARES
SPECIFIED IN THE EXERCISE AGREEMENT, SHALL BE DELIVERED TO THE HOLDER HEREOF
WITHIN A REASONABLE TIME, NOT EXCEEDING THREE (3) BUSINESS DAYS, AFTER THIS
WARRANT SHALL HAVE BEEN SO EXERCISED (THE "DELIVERY PERIOD").
THE COMPANY SHALL
DELIVER TO THE HOLDER PHYSICAL CERTIFICATES REPRESENTING THE WARRANT SHARES SO
PURCHASED.
ANY CERTIFICATES SO DELIVERED SHALL BE IN SUCH DENOMINATIONS AS MAY
BE REASONABLY REQUESTED BY THE HOLDER HEREOF, SHALL BE REGISTERED IN THE NAME OF
SUCH HOLDER OR SUCH OTHER NAME AS SHALL BE DESIGNATED BY SUCH HOLDER AND,
FOLLOWING THE DATE ON WHICH THE WARRANT SHARES MAY BE SOLD BY THE HOLDER
PURSUANT TO RULE 144(K) PROMULGATED UNDER THE SECURITIES ACT (OR A SUCCESSOR
RULE), SHALL NOT BEAR ANY RESTRICTIVE LEGEND.
IF THIS WARRANT SHALL HAVE BEEN
EXERCISED ONLY IN PART, THEN THE COMPANY SHALL, AT ITS EXPENSE, AT THE TIME OF
DELIVERY OF SUCH CERTIFICATES, DELIVER TO THE HOLDER A NEW WARRANT REPRESENTING
THE NUMBER OF SHARES WITH RESPECT TO WHICH THIS WARRANT SHALL NOT THEN HAVE BEEN
EXERCISED.
2.
PERIOD OF EXERCISE; VESTING.
SUBJECT TO THE FOLLOWING SENTENCE
OF THIS SECTION 2, THIS WARRANT IS IMMEDIATELY EXERCISABLE, AT ANY TIME OR FROM
TIME TO TIME ON OR AFTER MAY 12, 2003 (THE "ISSUE DATE") AND BEFORE 5:00 P.M.,
NEW YORK CITY TIME, ON JANUARY 1, 2009, SUBJECT TO ADJUSTMENT (AS ADJUSTED, THE
"EXPIRATION DATE") AS PROVIDED IN SECTION 2(D) OF THE REGISTRATION RIGHTS
AGREEMENT, DATED AS OF MAY 12, 2003, BY AND AMONG THE COMPANY AND THE OTHER
SIGNATORIES THERETO (THE "REGISTRATION RIGHTS AGREEMENT")
(SUCH PERIOD BEING
THE "EXERCISE PERIOD").
THIS WARRANT SHALL CUMULATIVELY VEST AND BE EXERCISABLE
DURING THE EXERCISE PERIOD WITH RESPECT TO THE NUMBER OF WARRANT SHARES THAT
EQUALS THIRTY (30) [SEVENTY-FIVE (75) FOR TAIL WIND] PERCENT OF THE CUMULATIVE
NUMBER OF SHARES OF SERIES A PREFERRED STOCK THAT HAVE BEEN PURCHASED BY THE
ORIGINAL HOLDER HEREOF PURSUANT TO THE SECURITIES PURCHASE AGREEMENT AND UPON
EXERCISE OF THE SHORT-TERM WARRANTS ISSUED PURSUANT TO THE SECURITIES PURCHASE
AGREEMENT.
3.
CERTAIN AGREEMENTS OF THE COMPANY.
THE COMPANY HEREBY COVENANTS
AND AGREES AS FOLLOWS:
2
(A)
SHARES TO BE FULLY PAID.
ALL WARRANT SHARES, UPON ISSUANCE IN
ACCORDANCE WITH THE TERMS OF THIS WARRANT, AND THE SHARES OF COMMON STOCK
ISSUABLE UPON CONVERSION OF THE WARRANT SHARES, WILL BE VALIDLY ISSUED, FULLY
PAID AND NONASSESSABLE AND FREE FROM ALL LIENS, CLAIMS AND ENCUMBRANCES.
(B)
RESERVATION OF SHARES.
DURING THE EXERCISE PERIOD, THE COMPANY
SHALL AT ALL TIMES HAVE AUTHORIZED, AND RESERVED FOR THE PURPOSE OF ISSUANCE
UPON EXERCISE OF THIS WARRANT, A SUFFICIENT NUMBER OF SHARES OF SERIES A
PREFERRED STOCK