WITH A BONA FIDE MARGIN
ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES.
[ANY
TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE,
INCLUDING SECTIONS 3(c)(iii) AND 18(a) HEREOF.
THE HOLDER OF THIS NOTE AGREES
TO THE TERMS AND PROVISIONS SET FORTH IN SECTION 4(q) OF THE SECURITIES PURCHASE
AGREEMENT REGARDING THE COLLATERAL AGENT (AS DEFINED IN THE SECURITIES PURCHASE
AGREEMENT).
THE PRINCIPAL
AMOUNT REPRESENTED BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON
CONVERSION HEREOF MAY BE LESS THAN THE AMOUNTS SET FORTH ON THE FACE HEREOF
PURSUANT TO SECTION 3(c)(iii) OF THIS NOTE.]
The legend set forth above shall be removed and the Company shall issue a
certificate without such legend to the holder of the Securities upon which it is
stamped by electronic delivery at the applicable balance account at DTC (as
defined below), unless otherwise required by state securities laws, (i) such
Securities are registered for resale under the 1933 Act, (ii) in connection with
a sale, assignment or other transfer, such holder provides the Company with an
opinion of counsel, in a generally acceptable form, to the effect that such
sale, assignment or transfer of the Securities may be made without registration
under the applicable requirements of the 1933 Act, or (iii) such holder provides
the Company with reasonable assurance that the Securities can be sold, assigned
or transferred pursuant to Rule 144 or Rule 144A.
(H)
VALIDITY; ENFORCEMENT.
THIS AGREEMENT AND THE REGISTRATION RIGHTS
AGREEMENT AND THE SECURITY DOCUMENTS TO WHICH SUCH BUYER IS A PARTY HAVE BEEN
DULY AND VALIDLY AUTHORIZED, EXECUTED AND DELIVERED ON BEHALF OF SUCH BUYER AND
SHALL CONSTITUTE THE LEGAL, VALID AND BINDING OBLIGATIONS OF SUCH BUYER
ENFORCEABLE AGAINST SUCH BUYER IN ACCORDANCE WITH THEIR RESPECTIVE TERMS, EXCEPT
AS SUCH ENFORCEABILITY MAY BE LIMITED BY GENERAL PRINCIPLES OF EQUITY OR TO
APPLICABLE BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM, LIQUIDATION AND
OTHER SIMILAR LAWS RELATING TO, OR AFFECTING GENERALLY, THE ENFORCEMENT OF
APPLICABLE CREDITORS' RIGHTS AND REMEDIES.
(I)
NO CONFLICTS.
THE EXECUTION, DELIVERY AND PERFORMANCE BY SUCH BUYER
OF THIS AGREEMENT AND THE REGISTRATION RIGHTS AGREEMENT AND THE SECURITY
DOCUMENTS TO WHICH SUCH BUYER IS A PARTY AND THE CONSUMMATION BY SUCH BUYER OF
THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY WILL NOT (I) RESULT IN A
VIOLATION OF THE ORGANIZATIONAL DOCUMENTS OF SUCH BUYER OR (II) CONFLICT WITH,
OR CONSTITUTE A DEFAULT (OR AN EVENT WHICH WITH NOTICE OR LAPSE OF TIME OR BOTH
WOULD BECOME A DEFAULT) UNDER, OR GIVE TO OTHERS ANY RIGHTS OF TERMINATION,
AMENDMENT, ACCELERATION OR CANCELLATION OF, ANY AGREEMENT, INDENTURE OR
INSTRUMENT TO WHICH SUCH BUYER IS A PARTY, OR (III) RESULT IN A VIOLATION OF ANY
LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE (INCLUDING FEDERAL AND STATE
SECURITIES LAWS) APPLICABLE TO SUCH BUYER, EXCEPT IN THE CASE OF CLAUSES
(II) AND (III) ABOVE, FOR SUCH CONFLICTS, DEFAULTS, RIGHTS OR VIOLATIONS WHICH
WOULD NOT, INDIVIDUALLY OR IN THE AGGREGATE, REASONABLY BE EXPECTED TO HAVE A
MATERIAL ADVERSE EFFECT ON THE