"IRREVOCABLE TRANSFER AGENT INSTRUCTIONS").
THE
COMPANY WARRANTS THAT NO INSTRUCTION OTHER THAN THE IRREVOCABLE TRANSFER AGENT
INSTRUCTIONS REFERRED TO IN THIS SECTION 5(B), AND STOP TRANSFER INSTRUCTIONS TO
GIVE EFFECT TO SECTION 2(J) HEREOF, WILL BE GIVEN BY THE COMPANY 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(I), 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, INTEREST SHARES OR WARRANT SHARES SOLD,
ASSIGNED OR TRANSFERRED PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT OR
PURSUANT TO 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.
(A)
CLOSING DATE.
THE OBLIGATION OF THE COMPANY HEREUNDER TO ISSUE AND SELL
THE NOTES 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 SHALL HAVE EXECUTED EACH OF THE TRANSACTION DOCUMENTS
TO WHICH IT IS A PARTY AND DELIVERED THE SAME TO THE COMPANY.
(II)
SUCH BUYER SHALL HAVE DELIVERED TO THE COMPANY THE PURCHASE PRICE
(LESS, IN THE CASE OF SMITHFIELD FIDUCIARY LLC, THE AMOUNTS WITHHELD PURSUANT TO
SECTION 4(G)) FOR THE NOTES AND THE RELATED WARRANTS BEING PURCHASED BY SUCH
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 AS OF THE DATE WHEN MADE AND AS OF THE CLOSING DATE AS THOUGH MADE
AT THAT TIME (EXCEPT FOR REPRESENTATIONS AND WARRANTIES