SHALL THE COMPANY INCLUDE ANY
SECURITIES OTHER THAN REGISTRABLE SECURITIES ON ANY REGISTRATION STATEMENT
WITHOUT THE PRIOR WRITTEN CONSENT OF THE REQUIRED HOLDERS.
C.
LEGAL COUNSEL.
SUBJECT TO SECTION 5 HEREOF, THE REQUIRED HOLDERS SHALL
HAVE THE RIGHT TO SELECT ONE LEGAL COUNSEL TO REVIEW AND OVERSEE ANY
REGISTRATION PURSUANT TO THIS SECTION 2 ("LEGAL COUNSEL"), WHICH SHALL BE
SCHULTE ROTH & ZABEL LLP OR SUCH OTHER COUNSEL AS THEREAFTER DESIGNATED BY THE
REQUIRED HOLDERS.
THE COMPANY AND LEGAL COUNSEL SHALL REASONABLY COOPERATE WITH
EACH OTHER IN PERFORMING THE COMPANY'S OBLIGATIONS UNDER THIS AGREEMENT.
D.
INELIGIBILITY FOR FORM S-3.
IN THE EVENT THAT FORM S-3 IS NOT AVAILABLE
FOR THE REGISTRATION OF THE RESALE OF REGISTRABLE SECURITIES HEREUNDER, THE
COMPANY SHALL (I) REGISTER THE RESALE OF THE REGISTRABLE SECURITIES ON ANOTHER
APPROPRIATE FORM REASONABLY ACCEPTABLE TO THE REQUIRED HOLDERS AND (II)
UNDERTAKE TO REGISTER THE REGISTRABLE SECURITIES ON FORM S-3 AS SOON AS SUCH
FORM IS AVAILABLE, PROVIDED THAT THE COMPANY SHALL MAINTAIN THE EFFECTIVENESS OF
THE REGISTRATION STATEMENT THEN IN EFFECT UNTIL SUCH TIME AS A REGISTRATION
STATEMENT ON FORM S-3 COVERING THE REGISTRABLE SECURITIES HAS BEEN DECLARED
EFFECTIVE BY THE SEC.
E.
SUFFICIENT NUMBER OF SHARES REGISTERED.
IN THE EVENT THE NUMBER OF
SHARES AVAILABLE UNDER A REGISTRATION STATEMENT FILED PURSUANT TO SECTION 2(A)
IS INSUFFICIENT TO COVER ALL OF THE REGISTRABLE SECURITIES REQUIRED TO BE
COVERED BY SUCH REGISTRATION STATEMENT OR AN INVESTOR'S ALLOCATED PORTION OF THE
REGISTRABLE SECURITIES PURSUANT TO SECTION 2(B), BY VIRTUE OF (I) ADJUSTMENT OF
THE CONVERSION PRICE OR THE EXERCISE PRICE PURSUANT TO SECTION 7 OF THE NOTES OR
SECTION 2 OF THE WARRANTS, RESPECTIVELY, OR (II) THE ISSUANCE OF ANY
PRE-INSTALLMENT CONVERSION SHARES OR POST-INSTALLMENT CONVERSION SHARES (EACH AS
DEFINED IN THE NOTES), THE COMPANY SHALL AMEND THE APPLICABLE REGISTRATION
STATEMENT, OR FILE A NEW REGISTRATION STATEMENT (ON THE SHORT FORM AVAILABLE
THEREFOR, IF APPLICABLE), OR BOTH, SO AS TO COVER AT LEAST THE REQUIRED
REGISTRATION AMOUNT AS OF THE TRADING DAY IMMEDIATELY PRECEDING THE DATE OF THE
FILING OF SUCH AMENDMENT OR NEW REGISTRATION STATEMENT, IN EACH CASE, AS SOON AS
PRACTICABLE, BUT IN ANY EVENT NOT LATER THAN FIFTEEN (15) DAYS AFTER THE
NECESSITY THEREFOR ARISES.
THE COMPANY SHALL USE ITS BEST EFFORTS TO CAUSE SUCH
AMENDMENT AND/OR NEW REGISTRATION STATEMENT TO BECOME EFFECTIVE AS SOON AS
PRACTICABLE FOLLOWING THE FILING THEREOF.
FOR PURPOSES OF THE FOREGOING
PROVISION, THE NUMBER OF SHARES AVAILABLE UNDER A REGISTRATION STATEMENT SHALL
BE DEEMED "INSUFFICIENT TO COVER ALL OF THE REGISTRABLE SECURITIES" IF ON ANY
TRADING DAY AFTER THE FILING DATE AND DURING THE REGISTRATION PERIOD (EACH A
"TEST TRADING DAY"), THE NUMBER OF SHARES OF COMMON STOCK AVAILABLE FOR RESALE
UNDER THE REGISTRATION STATEMENT IS LESS THAN THE PRODUCT DETERMINED BY
MULTIPLYING (I) THE REQUIRED REGISTRATION AMOUNT DETERMINED AS OF SUCH TEST
TRADING DAY BY (II) 0.90.
THE CALCULATION SET FORTH IN THE FOREGOING SENTENCE
SHALL BE MADE WITHOUT REGARD TO ANY LIMITATIONS ON THE CONVERSION OF THE NOTES
OR THE EXERCISE