CALENDAR
QUARTER THEREAFTER UNTIL SUCH STOCKHOLDER APPROVAL IS OBTAINED.
(Q)
VOTING AGREEMENT.
THE COMPANY SHALL USE ITS
REASONABLE BEST EFFORTS TO EFFECTUATE THE TRANSACTIONS CONTEMPLATED BY THE
VOTING AGREEMENT, SUBSTANTIALLY IN THE FORM ATTACHED HERETO AS EXHIBIT H,
EXECUTED BY THE COMPANY AND PEHONG CHEN (THE "VOTING AGREEMENT").
(R)
TRADING IN COMMON STOCK.
FOR SO LONG AS
SUCH BUYER OWNS ANY NOTES, SUCH BUYER SHALL NOT MAINTAIN A NET SHORT POSITION.
FOR PURPOSES OF THIS SECTION, A "NET SHORT POSITION" BY A PERSON MEANS A
POSITION WHEREBY SUCH PERSON HAS EXECUTED ONE OR MORE SALES OF COMMON STOCK THAT
IS MARKED AS A SHORT SALE AND THAT IS EXECUTED AT A TIME WHEN SUCH BUYER HAS NO
EQUIVALENT OFFSETTING LONG POSITION IN THE COMMON STOCK OR CONTRACT FOR THE
FOREGOING.
FOR PURPOSES OF DETERMINING WHETHER A BUYER HAS AN EQUIVALENT
OFFSETTING LONG POSITION IN THE COMMON STOCK, ALL COMMON STOCK (I) THAT IS OWNED
BY SUCH BUYER, (II) THAT MAY BE ISSUED AS INTEREST SHARES PURSUANT TO THE TERMS
OF THE NOTES TO THE BUYER OR (III) THAT WOULD BE ISSUABLE UPON CONVERSION OR
EXERCISE IN FULL OF ALL SECURITIES THEN HELD BY SUCH BUYER (ASSUMING THAT SUCH
SECURITIES WERE THEN FULLY CONVERTIBLE OR EXERCISABLE, NOTWITHSTANDING ANY
PROVISIONS TO THE CONTRARY, AND GIVING EFFECT TO ANY CONVERSION OR EXERCISE
PRICE ADJUSTMENTS THAT WOULD TAKE EFFECT GIVEN ONLY THE PASSAGE OF TIME) SHALL
BE DEEMED TO BE HELD LONG BY SUCH BUYER.
WITHOUT LIMITING THE FOREGOING, THE
BUYERS MAY ENGAGE IN HEDGING ACTIVITIES AT VARIOUS TIMES DURING THE PERIOD
FOLLOWING THE PUBLIC ANNOUNCEMENT OF THE EXECUTION OF THIS AGREEMENT AS PROVIDED
IN SECTION 4(I), AND DURING THE PERIOD THAT THE NOTES ARE OUTSTANDING,
INCLUDING, WITHOUT LIMITATION, DURING THE PERIODS THAT THE VALUE OF THE COMMON
SHARES DELIVERABLE WITH RESPECT TO THE NOTES IS BEING DETERMINED.
5.
REGISTER; TRANSFER AGENT INSTRUCTIONS.
(A)
REGISTER.
THE COMPANY SHALL MAINTAIN AT
ITS PRINCIPAL EXECUTIVE OFFICES (OR SUCH OTHER OFFICE OR AGENCY OF THE COMPANY
AS IT MAY DESIGNATE BY NOTICE TO EACH HOLDER OF SECURITIES), A REGISTER FOR THE
NOTES, THE WARRANTS AND THE ADDITIONAL INVESTMENT RIGHTS, IN WHICH THE COMPANY
SHALL RECORD THE NAME AND ADDRESS OF THE PERSON IN WHOSE NAME THE NOTES, THE
WARRANTS AND ADDITIONAL INVESTMENT RIGHTS HAVE BEEN ISSUED (INCLUDING THE NAME
AND ADDRESS OF EACH TRANSFEREE), THE PRINCIPAL AMOUNT OF NOTES HELD BY SUCH
PERSON, THE NUMBER OF INTEREST SHARES ISSUABLE PURSUANT TO THE TERMS OF THE
NOTES, CONVERSION SHARES ISSUABLE UPON CONVERSION OF THE NOTES AND WARRANT
SHARES ISSUABLE UPON EXERCISE OF THE WARRANTS HELD BY SUCH PERSON.
THE COMPANY
SHALL KEEP THE REGISTER OPEN AND AVAILABLE AT ALL TIMES DURING BUSINESS HOURS
FOR INSPECTION OF ANY BUYER OR ITS LEGAL REPRESENTATIVES.
(B)
TRANSFER AGENT INSTRUCTIONS.
THE COMPANY
SHALL ISSUE IRREVOCABLE INSTRUCTIONS TO ITS TRANSFER AGENT, AND ANY SUBSEQUENT
TRANSFER AGENT, TO ISSUE CERTIFICATES OR CREDIT SHARES TO THE APPLICABLE BALANCE
ACCOUNTS AT THE DEPOSITORY TRUST COMPANY ("DTC"), REGISTERED IN THE NAME OF EACH
BUYER OR ITS RESPECTIVE