Common use of Short Sales and Confidentiality After The Date Hereof Clause in Contracts

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such time on the transactions contemplated by this Agreement are first publicly announced as described in Section 4.690th day after the Closing Date. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-6 month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6; provided, however, each 4.4 and (iii) no Purchaser agrees, severally and shall have any duty of confidentiality or duty not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from to trade in the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary securities of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant Company to the Debentures and Warrant Shares that have not yet been exercised pursuant Company or its subsidiaries with respect to the Warrants shall be deemed to be held long transactions contemplated by this Agreement after the Purchaser, and issuance of the amount issuance of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares initial press release as described in this sentenceclause (i) otherwise then held by such Purchaserof the first sentence of Section 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, The Buyer covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with from the Discussion Time time that the Buyer first received a term sheet from the Company or any other Person setting forth the material terms of the transactions contemplated hereunder and ending at such time on the earlier of (i) the date that the transactions contemplated by this Agreement are first publicly announced subsequent to the Closing Date as described in Section 4.65(k) and (ii) the date, if applicable, that this Agreement is terminated pursuant to Section 10(l). Each Purchaser, severally and not jointly with the other Purchasers, The Buyer covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.65(k) or the earlier termination of this Agreement, such Purchaser the Buyer will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). The Buyer understands and acknowledges that the information included SEC currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the effective date of the Registration Statement with the Securities is a violation of Section 5 of the 1933 Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes the Buyer does not make any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time earlier of (i) the date that the transactions contemplated by this Agreement are first publicly announced subsequent to the Closing Date as described in Section 4.6; provided5(k) and (ii) the date, however, each Purchaser agrees, severally and not jointly with any other Purchasersif applicable, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that this Agreement is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted terminated pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such PurchaserSection 10(l). Notwithstanding the foregoing, in the case of a Purchaser Buyer that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s Buyer's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s Buyer's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser4.5. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6Company, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and any material non-public information provided to the information included in the Transaction Documents and the Disclosure SchedulesPurchaser. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced and (iii) no Purchaser shall have any duty of confidentiality to the Company or its subsidiaries with respect to the transactions contemplated by this Agreement after the issuance of the Current Report on Form 8-K as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser6.6. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 and (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5.; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-Effective Date of the initial Registration Statement, (y) the twelve (12) month anniversary of the Closing Date or and (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.11, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to issue Securities without legends prior to the settlement date for such sale (assuming that such Securities meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.11 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate or other Person acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the beginning of the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until the later of (i) such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4 and (ii) such time as any material non-public information provided to a Purchaser is disclosed or ceases to be material, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities Shares covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Investor severally and not jointly with the other Purchasers, Investors covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Further, each Investor severally and not jointly with the other Investors covenants that until such Investor does not hold any of the Warrants, such Investor shall not create any “net short” position in the Company’s Common Stock, whereby the Investor shall have engaged in a Short Sale which would make such Investor’s short position greater than the number of shares of Common Stock which such Investor could obtain by exercising its Warrants held at the time of such determination. Each PurchaserInvestor, severally and not jointly with the other PurchasersInvestors, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser Investor will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Investor understands and acknowledges, severally and not jointly with any other Investor, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser Investor makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserInvestor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserInvestor’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesof the Securities. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, shares of Common Stock, including the Underlying Shares Shares, that have not yet been converted or exercised pursuant to any Common Stock Equivalents, including the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants Warrants, shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares shares thereunder (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6; provided4.4, however, each (ii) no Purchaser agrees, severally and not jointly with shall be restricted or prohibited from effecting any other Purchasers, that they will not enter into transactions in any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary securities of the Closing Date or (y) Company in accordance with applicable securities laws from and after the date time that such Purchaser no longer holds any Debentures. For purposes of the transactions contemplated by this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted Agreement are first publicly announced pursuant to the Debentures initial press release as described in Section 4.4 and Warrant Shares that (iii) no Purchaser shall have not yet been exercised pursuant any duty of confidentiality to the Warrants shall be deemed to be held long by Company or its Subsidiaries after the Purchaser, and issuance of the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares initial press release as described in this sentence) otherwise then held by such PurchaserSection 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Notes and the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-30 month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserThe Purchaser shall not, severally and shall cause its Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.17. Each Purchaser, severally and not jointly with the other Purchasers, The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such the Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no the Purchaser makes any no representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that expiration of the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6lock-up period pursuant to the Lock-Up Agreement; provided, however, each the Purchaser agrees, severally and not jointly with any other Purchasers, agrees that they it will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such the Purchaser no longer holds any DebenturesShares, but in no event earlier than the expiration of the lock-up period pursuant to the Lock-Up Agreement. For purposes of this Section 4.154.12, a “Net Short Sale” by any the Purchaser shall mean a sale of Common Stock by such the Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such the Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such the Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such the Purchaser. Notwithstanding the foregoing, in the case of a event that the Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such the Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that the Purchaser has sold Shares pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.12 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. The Purchaser understands and acknowledges that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time execution of this Agreement and ending at such time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they such Purchaser will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any DebenturesDebentures or Warrants. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when where there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage in any transactions, will execute including any Short Sales Sales, in the securities of the Company during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will engage in any Short Sales in the securities of the Company during the period commencing at the Discussion Time and ending on the Effective Date (“Black-out Termination Date”). Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Subscription Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6Black-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserout Termination Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities Subscription Shares covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 5.19. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6effective date, if any, of a registration statement covering the resale of the Securities, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.11, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales below the price of $1.50 per share during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Investor severally and not jointly with the other Purchasers, Investors covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any short sales as defined in Rule 3b-3 of the Exchange Act ("Short Sales Sales") during the period commencing with after such calendar day when the Investor was first contacted by anyone regarding an investment in the Company ("Discussion Time Time") and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.66.3. Each PurchaserInvestor, severally and not jointly with the other PurchasersInvestors, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.66.3, such Purchaser Investor will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Investor understands and acknowledges, severally and not jointly with any other Investor, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser Investor makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided6.3, however, each Purchaser agrees, severally and not jointly provided that all such transactions will comply with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserapplicable securities laws. Notwithstanding the foregoing, in the case of a Purchaser Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s Investor's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s Investor's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage in any transactions, will execute including any Short Sales Sales, in the securities of the Company during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will engage in any Short Sales in the securities of the Company during the period commencing at the Discussion Time and ending on the Effective Date (“Black-out Termination Date”). Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6Black-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserout Termination Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, Purchaser covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Net Short Sales (as defined below) during the following period commencing with on the date hereof and at the Discussion Time and ending at on the earliest of (i) the 24 month anniversary of the Effective Date, (ii) such time that the transactions contemplated by Company has exercised Draw Downs for the entire Commitment Amount hereunder, (iii) the 36 month anniversary of the date of this Agreement are first publicly announced as described in Section 4.6and (iv) the termination of this Agreement. Each Purchaser, severally and not jointly with the other Purchasers, Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such the Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Purchaser understands and acknowledges that the information included in Commission currently takes the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby position that it will not engage in Short Sales in the securities coverage of short sales of shares of the Company after Common Stock “against the time that box” prior to the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Effective Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) Registration Statement with the date that such Purchaser no longer holds any DebenturesSecurities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. For purposes of this Section 4.154.10, a “Net Short Sale” by any the Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to shares of Common Stock underlying the Warrants (ignoring any exercise limitations therein) shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.19. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.14, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Preferred Shares that have not yet been converted issued pursuant to the Debentures and Warrant Conversion of Preferred Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted shares of Common Stock and all Underlying Preferred Shares and unexercised Warrant into which the Purchaser’s Preferred Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such dateare convertible, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.14 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 and (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or and (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to issue Securities without legends prior to the settlement date for such sale (assuming that such Securities meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-6 month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “"Net Short Sale” " by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.19. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Resale Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and Warrant conversion of the Shares that have not yet been exercised pursuant to the Warrants or Series B-2 Preferred Stock shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise conversion limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4 except that, until the expiration of the 6 month period immediately following the date hereof, such Purchaser severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it, shall knowingly engage in any Short Sales, except on those days (each a “Permitted Day”) on which the aggregate short position with respect to the Common Stock of such Purchaser prior to giving effect to any Short Sales by such Purchaser on such Permitted Day does not exceed such Purchaser’s Permitted Share Position (as defined below) on such Permitted Day; provided, however, each that a Purchaser agrees, severally and not jointly with any other Purchasers, will only be entitled to engage in transactions that they will not enter into any Net constitute Short Sales (as hereinafter defined) from on a Permitted Day to the period commencing on extent that following such transaction, the Closing Date and ending on aggregate short position with respect to the date that is the earlier Common Stock of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesdoes not exceed such Purchaser’s Permitted Share Position. For purposes of this Section 4.15, a Purchaser’s “Net Short SalePermitted Share Position” by means, with respect to any Purchaser shall mean a sale date of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by determination, the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount number of shares of Common Stock held in a long position shall be all unconverted Underlying owned by such Purchaser (including Shares, Warrant Shares and unexercised Warrant shares purchased in the open market or otherwise) plus the maximum number of Warrants Shares then issuable (ignoring including as to portions of the Warrants not yet exercised and without regard to any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock caps or other Common Stock Equivalents (other than exercise restrictions applicable to the unconverted Underlying Shares and unexercised Warrant Shares described in this sentenceWarrants) otherwise then held by to such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser, acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they it will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesshares of Preferred Stock. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures shares of Preferred Stock and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Prior to the earliest to occur of (i) the termination of this Agreement, (ii) the Effective Date or (iii) the Required Effectiveness Date, each Purchaser, severally and not jointly with the other Purchasers, covenants that neither itit shall not, and shall cause its Affiliates not to, engage, directly or indirectly, in (a) a Prohibited Transaction nor (b) any Affiliate acting on its behalf sale, assignment, pledge, hypothecation, put, call, or pursuant to other transfer of any understanding with itof the shares of Common Stock, will execute any Short Sales during warrants or other securities of the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6issuer acquired hereunder. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agreesacknowledges, severally and not jointly with any other PurchasersPurchaser, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on Commission currently takes the Closing Date and ending on the date position that is the earlier coverage of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount sales of shares of the Common Stock held “against the box” prior to the Effective Date of the Registration Statement with the Shares is a violation of Section 5 of the Securities Act, as set forth in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such dateItem 65, plus any shares Section A, of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by such Purchaserthe Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager managers that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedulestransaction). Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement. Notwithstanding the foregoing, with respect to LB I Group Inc., the covenants contained in this Section 4.13 shall only apply to the Global Trading Strategies group, as currently configured, of Xxxxxx Brothers Inc., and shall not apply to any other affiliate, subsidiary, business unit, area, group or division of Xxxxxx Brothers Inc. Notwithstanding the foregoing, with respect to Banc of America Strategic Investments Corporation, the covenants contained in this Section 4.13 shall only apply to Banc of America Strategic Investments Corporation, as currently configured, and shall not apply to any other affiliate, subsidiary, business unit, area, group or division of Bank of America Corporation.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage in any transactions, will execute including any Short Sales Sales, in the securities of the Company during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will engage in any Short Sales in the securities of the Company during the period commencing at the Discussion Time and ending on the date the Closing 8-K is filed with the SEC (“Black-out Termination Date”). Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with respect to the Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6Black-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserout Termination Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities Shares covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage in any transactions, will execute including any Short Sales Sales, in the securities of the Company during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will engage in any Short Sales in the securities of the Company during the period commencing at the Discussion Time and ending on the date the Closing 8-K is filed with the SEC (“Black-out Termination Date”). Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with respect to the Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6Black-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserout Termination Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage, will execute directly or indirectly, in any transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities) during the period commencing with at the Discussion Time and ending at until such time as (i) the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 5.1. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agreesacknowledges, severally and not jointly with any other PurchasersPurchaser, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on Commission currently takes the Closing Date and ending on the date position that is the earlier coverage of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount sales of shares of Common Stock held “against the box” prior to the Effective Date of the Registration Statement covering the Securities is a violation of Section 5 of the Securities Act, as set forth in a long position shall be all unconverted Underlying Shares Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Except in compliance with the Securities Act and unexercised the rules and regulations promulgated thereunder and applicable state securities laws, the Purchaser will not engage in any Short Sales that result in the disposition of the Securities (including the Warrant Shares (ignoring any exercise limitations included thereinShares) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than acquired hereunder by the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.15Section, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and conversion of the Shares, Series E-2 Preferred Stock or Preferred Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates book-entry statements without legends prior to the settlement date for such sale (assuming that such certificates or book-entry statements meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding Each Purchaser severally and not jointly with any other Purchaser, acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. N otwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (xi) the 6-12 month anniversary of the Closing Effective Date or (yii) the date that such Purchaser no longer holds any Debentures12 month anniversary of the Effectiveness Date (as defined in the Registration Rights Agreement) of the initial Registration Statement . For purposes of this Section 4.15, a ““ Net Short SaleSale ” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures shares of Preferred Stock and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such PurchaserPurchaser . Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.12, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.12 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 6.17. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4 (subject to any written agreement between such Purchaser and the Company regarding the confidentiality and use of material non-public information); provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-month Effective Date of the initial Registration Statement, (y) the second anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.11, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a non-exempt short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement.. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates book-entry statements without legends prior to the settlement date for such sale (assuming that such certificates or book-entry statements meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.11 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. 29

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.12, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock Shares by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock Shares held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock Shares held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants and Prefunded Warrants, shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock Shares held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock Shares or other Common Stock Share Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.12 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering Common Shares in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Holder severally and not jointly with the other Purchasers, Holders covenants that neither it, it nor any Affiliate Affiliates acting on its behalf or pursuant to any understanding with it, it (i) will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.7 and (ii) thereafter so long as any Debentures, Residual Debentures, or Series B Preferred remain outstanding, will not execute any Short Sales in Common Stock in an amount greater than the number of shares of Common Stock that such Holder owns or that such Holder reasonably expects it could receive upon conversion of the Debentures, Residual Debentures, Series B Preferred and Warrants and any other convertible securities of the Company then owned by it. Each PurchaserHolder, severally and not jointly with the other PurchasersHolders, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.7 such Holder will maintain, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Holder understands and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agreesacknowledges, severally and not jointly with any other PurchasersHolder, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on Commission currently takes the Closing Date and ending on the date position that is the earlier coverage of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount sales of shares of the Common Stock held “against the box” prior to the Effective Date of the Registration Statement is a violation of Section 5 of the Securities Act, as set forth in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such dateItem 65, plus any shares Section 5 under Section A, of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by such Purchaserthe Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, in the case of a Purchaser Holder that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserHolder’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserHolder’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate or other Person acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the beginning of the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until the later of (i) such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4 and (ii) such time as any material non-public information provided to a Purchaser is disclosed or ceases to be material, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities Shares covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesShares. For purposes of this Section 4.154.12, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Shares pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.12 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-month anniversary Effective Date of the Closing Date initial Registration Statement or (y) the date that such Purchaser no longer holds any DebenturesShares. For purposes of this Section 4.154.10, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Shares pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends or unlegended book entry positions prior to the settlement date for such sale (assuming that such certificates or book entry positions meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.10 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser4.5. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to conversion of the Warrants Notes shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time date hereof and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to Section 4.4, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to Section 4.4 and (iii) no Purchaser shall have any duty of confidentiality to the Company or its subsidiaries with respect to the transactions contemplated by this Agreement after the issuance of the Current Report on Form 8-K as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales clause (as hereinafter definedi) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes first sentence of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate Affiliates acting on its behalf or pursuant to any understanding with it, it will directly or indirectly execute any disposition, or engage or commit to engage in any transaction, including Short Sales during the period after the during the period commencing with from the Discussion Time time that such Purchaser first received a term sheet from the Company or any other Person setting forth the material terms of the transactions contemplated hereunder until the date hereof and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserInvestor, severally and not jointly with the other PurchasersInvestors, covenants that neither it, it nor any Affiliate Affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) after the transactions contemplated by this Agreement are first publicly announced as described (subject to, and conditioned upon, the Company’s compliance with its obligations under Section 7.4) or (ii) this Agreement is terminated in Section 4.6accordance with its terms. Each PurchaserInvestor, severally and not jointly with the other PurchasersInvestors, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in (subject to, and conditioned upon, the Company’s compliance with its obligations under Section 4.67.4), such Purchaser Investor will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction), other than as disclosed to its legal and other representatives. Each Investor, severally and not jointly with the information other Investors, understands and acknowledges that the SEC currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to effectiveness of a resale registration statement with securities included in such registration statement and pursuant thereto would be a violation of Section 5 of the Transaction Documents 1933 Act, as set forth in Item 239.10 of the 1933 Act Rules Compliance and Disclosure Interpretations compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoingforegoing and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser Investor makes any representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6; provided7.4, however, each Purchaser agrees, severally and not jointly with (ii) no Investor shall be restricted or prohibited from effecting any other Purchasers, that they will not enter into transactions in any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary securities of the Closing Date or (y) Company in accordance with applicable securities laws from and after the date time that such Purchaser no longer holds any Debentures. For purposes of the transactions contemplated by this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted Agreement are first publicly announced pursuant to the Debentures initial press release as described in Section 7.4 and Warrant Shares that (iii) no Investor shall have any duty of confidentiality or duty not yet been exercised pursuant to trade in the securities of the Company to the Warrants shall be deemed to be held long by Company, any of its Subsidiaries, or any of their respective officers, directors, employees, Affiliates or agents, including, without limitation, any placement agent, after the Purchaser, and issuance of the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares initial press release as described in this sentence) otherwise then held by such PurchaserSection 7.4. Notwithstanding the foregoingFurthermore, in the case of a Purchaser an Investor that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserInvestor’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserInvestor’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser understands and acknowledges, and agrees, to act in a manner that will not violate the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month two year anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the shares of Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided4.6 except that, howeverso long as a Purchaser continues to hold any Debentures or Warrants, each such Purchaser agrees, severally and not jointly with any the other Purchasers, covenants that they will not enter into neither it nor any Net Affiliate acting on its behalf or pursuant to any understanding with it, shall knowingly engage in any Short Sales, except on those days (each a "PERMITTED DAY") on which the aggregate short position with respect to the Common Stock of such Purchaser prior to giving effect to any Short Sales by such Purchaser on such Permitted Day does not exceed such Purchaser's Permitted Share Position (as hereinafter defineddefined below) from on such Permitted Day; PROVIDED, HOWEVER, that a Purchaser will only be entitled to engage in transactions that constitute Short Sales on a Permitted Day to the period commencing on extent that following such transaction, the Closing Date and ending on aggregate short position with respect to the date that is the earlier Common Stock of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesdoes not exceed such Purchaser's Permitted Share Position. For purposes of this Section 4.154.16, a “Net Short Sale” by Purchaser's "PERMITTED SHARE POSITION" means, with respect to any Purchaser shall mean a sale date of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by determination, the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount number of shares of Common Stock held in a long position shall be all unconverted Underlying owned by such Purchaser (including Conversion Shares, Warrant Shares and unexercised Warrant shares purchased in the open market or otherwise) plus the sum of (i) the maximum number of Conversion Shares then issuable (ignoring including as to portions of the Debentures not yet converted and without regard to any exercise limitations included thereincaps or other exercise restrictions applicable to the Debentures and based on the then Set Price) issuable to such Purchaser on such date, plus and (ii) the maximum number of Warrants Shares then issuable (including as to portions of the Warrants not yet exercised and without regard to any shares of Common Stock exercise caps or other Common Stock Equivalents (other than exercise restrictions applicable to the unconverted Underlying Shares and unexercised Warrant Shares described in this sentenceWarrants) otherwise then held by to such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such time on the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6150th calendar day following the date hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserPurchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 and (ii) this Agreement is terminated in full pursuant to Section 6.9. Each Purchaser, severally and not jointly with the other Purchasers, Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes does not make any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, agrees that they it will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-Effective Date of the initial Registration Statement, (y) the twelve (12) month anniversary of the Closing Date or and (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.9, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding Moreover, notwithstanding the foregoing, in the case event that Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to issue Securities without legends prior to the settlement date for such sale (assuming that such Securities meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.9 shall not prohibit Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Purchaser understands and acknowledges that the Commission currently takes the position that covering a short position established prior to effectiveness of a Purchaser that is resale registration statement with shares included in such registration statement would be a multi-managed investment vehicle whereby separate portfolio managers manage separate portions violation of such Purchaser’s assets and the portfolio managers have no direct knowledge Section 5 of the investment decisions made Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the portfolio managers managing other portions Office of such Purchaser’s assetsChief Counsel, the covenant set forth above shall only apply with respect to the portion Division of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this AgreementCorporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time execution of this SPA and ending at such time that the transactions contemplated by this Agreement SPA are first publicly announced as described in pursuant to Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement SPA are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement SPA are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they such Purchaser will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any DebenturesNotes or Warrant Shares. For purposes of this Section 4.154.11, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when where there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this AgreementSPA.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.19. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.14, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.14 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserPurchaser shall not, severally and shall cause its Trading Affiliates not jointly with the other Purchasersto, covenants that neither itengage, nor any Affiliate acting on its behalf directly or pursuant to any understanding with itindirectly, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date date hereof and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Initial Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.10, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Conversion Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Holder severally and not jointly with the other Purchasers, Holders covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Each PurchaserHolder, severally and not jointly with the other PurchasersHolders, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6Company, such Purchaser Holder will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Holder understands and acknowledges, severally and not jointly with any other Holder, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser Holder makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserannounced. Notwithstanding the foregoing, in the case of a Purchaser Holder that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserHolder’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserHolder’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they such Purchaser will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.such

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted issued pursuant to the Debentures and conversion of the Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as described in the Press Release or (ii) this Agreement is terminated in full pursuant to Section 4.66.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6the Press Release, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6the Press Release; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-month anniversary of the Closing Effective Date or (y) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and conversion of the Shares, Series A-2 Preferred Stock or Preferred Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser understands and acknowledges, and agrees, to act in a manner that will not violate the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they or any Person acting at the request or direction of such Purchaser, will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date date hereof and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures (ignoring any conversion limitations included therein) and Warrant Shares that have not yet been exercised pursuant to the Warrants (ignoring any exercise limitations included therein) shall be deemed to be held long by the such Purchaser. Accordingly, and the amount of shares of Common Stock held in a long position hereunder shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any conversion and exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at such time date hereof until the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until the earlier of such time as (i) the transactions contemplated by this Agreement are publicly disclosed by the Company as described or (ii) this Agreement is terminated in full pursuant to Section 4.66.15, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, howeverFurther, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date date hereof and ending on the date that is the earlier earliest of (x) the 6-month anniversary Effective Date of the Closing Date initial Registration Statement, (y) January 12, 2022 or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.5, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a non-exempt short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such time on the transactions contemplated by this Agreement are first publicly announced earlier of (a) the Effectiveness Date (as described defined in Section 4.6the Registration Rights Agreement) and (b) the date that an Event of Default occurs under the Debentures (the "RESTRICTION DATE"). Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such PurchaserRestriction Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Further, each Purchaser severally and not jointly with the other Purchasers covenants that until such Purchaser does not hold any of the Debentures or Warrants, such Purchaser shall not create any “net short” position in the Company’s Common Stock, whereby the Purchaser shall have engaged in a Short Sale which would make such Purchaser’s short position greater than the number of shares of Common Stock which such Purchaser could obtain by converting its Debentures and exercising its Warrants held at the time of such determination. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with at the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-24 month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage, will execute directly or indirectly, in any transactions in the securities of the Company (including, without limitation, any Short Sales involving the Company’s securities) during the period commencing with at the Discussion Time and ending at until such time as (i) the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 5.1. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agreesacknowledges, severally and not jointly with any other PurchasersPurchaser, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on Commission currently takes the Closing Date and ending on the date position that is the earlier coverage of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount sales of shares of the Common Stock held “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in a long position shall be all unconverted Underlying Shares Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Except in compliance with the Securities Act and unexercised the rules and regulations promulgated thereunder and applicable state securities laws, the Purchaser will not engage in any Short Sales that result in the disposition of the Securities (including the Warrant Shares (ignoring any exercise limitations included thereinShares) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than acquired hereunder by the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserPurchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by 4.5 or (ii) this Agreement are publicly disclosed by is terminated in full pursuant to Section 6.18. For as long as each Purchaser holds Registrable Securities (as defined in the Company as described in Section 4.6Registration Rights Agreement), such Purchaser will maintain the confidentiality shall not, and shall cause its Trading Affiliates not to, engage, directly or indirectly, in any Short Sales of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesCompany’s securities. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the such time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such PurchaserRegistrable Securities. Notwithstanding the foregoing, in the case of a event that such Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that any Purchaser has sold Securities pursuant to Rule 144 prior to the effectiveness date of the relevant Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit such Purchaser from entering into net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 5.20. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6effective date, if any, of a registration statement covering the resale of the Securities, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.11, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale Short Sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, Purchaser covenants that neither it, nor any Affiliate affiliate acting on its behalf or pursuant to any understanding with it, has executed or will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Each Purchaser, severally and not jointly with the other Purchasers, Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6Company, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the any material non-public information included in the Transaction Documents and the Disclosure Schedulesprovided to Purchaser. Notwithstanding the foregoing, no and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) Purchaser makes any no representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described announced, (ii) Purchaser shall not be restricted or prohibited from effecting any transactions in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary securities of the Closing Date or Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced and (yiii) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale have no duty of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant confidentiality to the Debentures and Warrant Shares that have not yet been exercised pursuant Company or its subsidiaries with respect to the Warrants shall be deemed to be held long transactions contemplated by this Agreement after the Purchaser, and issuance of the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser8-K Filing. Notwithstanding the foregoing, in the case of a if Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above in this Section 5.9 shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedulestransaction). Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Each Purchaser agrees, severally and not jointly with any other Purchasers, that they it or any Person acting at the request or direction of Purchaser, will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, the Underlying Shares that have not yet been converted or exercised pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Shares, Underlying Shares and unexercised Warrant Shares (ignoring Shares(ignoring any exercise conversion limitations included therein) issuable to held by such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser, acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesshares of Preferred Stock. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures shares of Preferred Stock and Warrant Shares that have not yet been exercised other shares of Common Stock issuable to the Purchaser pursuant to the Warrants outstanding warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares underlying shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser, acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (xi) the 6-12 month anniversary of the Closing Effective Date or (yii) the date that such Purchaser no longer holds any Debentures12 month anniversary of the Effectiveness Date (as defined in the Registration Rights Agreement) of the initial Registration Statement. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures shares of Preferred Stock and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-month anniversary Effective Date of the Closing Date initial Registration Statement, or (y) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver unlegended shares of Common Stock prior to the settlement date for such sale (assuming that such certificates or book entry positions meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Compliance and Disclosure Interpretation No. 239.10 with respect to the Securities Act Section 5, dated Nov. 26, 2008, compiled by the Commission’s Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company pursuant to the initial press release as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6; provided4.4, however, each (ii) no Purchaser agrees, severally and not jointly with shall be restricted or prohibited from effecting any other Purchasers, that they will not enter into transactions in any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary securities of the Closing Date or (y) Company in accordance with applicable securities laws from and after the date time that such Purchaser no longer holds any Debentures. For purposes of the transactions contemplated by this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted Agreement are first publicly announced pursuant to the Debentures initial press release as described in Section 4.4 and Warrant Shares that (iii) no Purchaser shall have not yet been exercised pursuant any duty of confidentiality to the Warrants shall be deemed to be held long by Company or its Subsidiaries after the Purchaser, and issuance of the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares initial press release as described in this sentence) otherwise then held by such PurchaserSection 4.4. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser, understands and acknowledges, and agrees to act in a manner that will not violate, the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; except that, until the expiration of the 6 month period immediately following the date hereof, such Purchaser severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it, shall knowingly engage in any Short Sales, except on those days (each a “Permitted Day”) on which the aggregate short position with respect to the Common Stock of such Purchaser prior to giving effect to any Short Sales by such Purchaser on such Permitted Day does not exceed such Purchaser’s Permitted Share Position (as defined below) on such Permitted Day; provided, however, each that a Purchaser agrees, severally and not jointly with any other Purchasers, will only be entitled to engage in transactions that they will not enter into any Net constitute Short Sales (as hereinafter defined) from on a Permitted Day to the period commencing on extent that following such transaction, the Closing Date and ending on aggregate short position with respect to the date that is the earlier Common Stock of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesdoes not exceed such Purchaser’s Permitted Share Position. For purposes of this Section 4.154.14, a Purchaser’s “Net Short SalePermitted Share Position” by means, with respect to any Purchaser shall mean a sale date of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by determination, the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount number of shares of Common Stock held in a long position shall be all unconverted Underlying owned by such Purchaser (including Shares, Warrant Shares and unexercised Warrant Shares (ignoring any exercise limitations included thereinshares purchased in the open market, prior transactions with the Company or otherwise) issuable to such Purchaser on such date, plus any the maximum number of shares of Common Stock that such Purchaser has a right to convert or exercise into pursuant to any outstanding securities of the Company (whether or not exercised or converted and without regard to any exercise caps or other Common Stock Equivalents (other than exercise restrictions applicable to the unconverted Underlying Shares and unexercised Warrant Shares described in this sentenceWarrants) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to conversion of the Warrants Shares, Series B-2 Convertible Preferred Stock or Series B-3 Convertible Preferred Stock shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month two year anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the shares of Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserPurchaser shall not, severally and shall cause its Trading Affiliates not jointly with the other Purchasersto, covenants that neither itengage, nor any Affiliate acting on its behalf directly or pursuant to any understanding with itindirectly, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date date hereof and ending on the date that is the earlier earliest of (x) the 6twenty-four (24) month anniversary of the Initial Closing Date or (y) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.10, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Conversion Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 and (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or and (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Prefunded Warrant Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Prefunded Warrants and Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Prefunded Warrant Shares and Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to issue Securities without legends prior to the settlement date for such sale (assuming that such Securities meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.6 and (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6effective date of any initial registration statement that may be filed with respect to the Pre-Funded Warrant Shares, (y) the twenty-four (24) month anniversary of the Closing Date or and (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of shares of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in shares of Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in shares of Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Pre-Funded Warrant Shares that have not yet been exercised issued pursuant to the exercise of Pre-Funded Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Pre-Funded Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the effective date of any initial registration statement and the Company has failed to issue Securities without legends prior to the settlement date for such sale (assuming that such Securities meet the requirements set forth in Section 4.2(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesShares. For purposes of this Section 4.154.12, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock ADSs by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then ADSs held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Shares pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.12 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering ADSs in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserPurchaser shall not, severally and shall cause its Trading Affiliates not jointly with the other Purchasersto, covenants that neither itengage, nor any Affiliate acting on its behalf directly or pursuant to any understanding with itindirectly, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date date hereof and ending on the date that is the earlier earliest of (x) the 6twenty-four (24) month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.10, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised issued pursuant to the exercise of Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Conversion Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Section 239.10 of the Compliance and Disclosure Interpretations, compiled by the Office of Chief Counsel, Division of Corporation Finance, last updated March 4, 2011.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure SchedulesDocuments. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and Warrant conversion of the Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Registration Statement and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser severally and not jointly with any other Purchaser acknowledges the positions of the Commission as set forth in Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-30 month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “"Net Short Sale” " by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate Affiliates acting on its behalf or pursuant to any understanding with it, it (i) will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.6 and (ii) thereafter so long as any Debentures remain outstanding, will not execute any Short Sales in Company Common Stock in an amount greater than the number of shares of Company Common Stock that such Purchaser owns or that such Purchaser reasonably expects it could receive upon conversion of the Debentures and Warrants and any other convertible securities of the Company then owned by it, and the Shares of Company Common Stock, if any, such Purchaser reasonably expects it could receive at the next Interest Payment Date as its Interest Share Amount for such Interest Payment Date (as each of those terms is defined in the Debentures); provided, however, that the provisions of clause (ii) shall terminate if the Consolidation does not occur by the date set forth in Section 4.11, as that date may be extended by the consent of the Company, the Required Purchasers and STAC. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agreesacknowledges, severally and not jointly with any other PurchasersPurchaser, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on Commission currently takes the Closing Date and ending on the date position that is the earlier coverage of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount sales of shares of the Company Common Stock held “against the box” prior to the Effective Date of the Registration Statement is a violation of Section 5 of the Securities Act, as set forth in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such dateItem 65, plus any shares Section 5 under Section A, of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by such Purchaserthe Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserThe Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.19. Each Purchaser, severally and not jointly with the other Purchasers, The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such the Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no the Purchaser makes any no representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each the Purchaser agrees, severally and not jointly with any other Purchasers, agrees that they he will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such the Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.14, a “Net Short Sale” by any the Purchaser shall mean a sale of Common Stock by such the Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such the Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Preferred Shares that have not yet been converted issued pursuant to the Debentures and Warrant Conversion of Preferred Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted shares of Common Stock and all Underlying Preferred Shares and unexercised Warrant into which the Purchaser’s Preferred Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such dateare convertible, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such the Purchaser. Notwithstanding the foregoing, in the case of a event that the Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such the Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that the Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.14 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. The Purchaser understands and acknowledges that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.4 or (ii) this Agreement is terminated in full pursuant to Section 5.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6twenty-four (24) month anniversary of the Closing Date or and (y) the date that such Purchaser no longer holds any DebenturesShares. For purposes of this Section 4.154.7, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6Company, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserannounced. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by 4.5 or (ii) this Agreement are publicly disclosed by the Company as described in is terminated pursuant to Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules6.18. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6-month anniversary Effective Date of the Closing Date initial Registration Statement, or (y) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement and the Company has failed to deliver unlegended shares of Common Stock prior to the settlement date for such sale (assuming that such certificates or book entry positions meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that covering a short position established prior to effectiveness of a resale registration statement with shares included in such registration statement would be a violation of Section 5 of the Securities Act, as set forth in Compliance and Disclosure Interpretation No. 239.10 with respect to the Securities Act Section 5, dated Nov. 26, 2008, compiled by the Commission’s Division of Corporation Finance.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, New Purchaser severally and not jointly with the other Purchasers, New Purchasers covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with from the Discussion Time time that such Purchaser first received notice (written or oral) from the Company or any other Person setting forth the material terms of the transactions contemplated under this Amendment and ending at such the time that the transactions contemplated by this Agreement Amendment are first publicly announced as described in Section 4.66 of this Amendment. Each New Purchaser, severally and not jointly with the other New Purchasers, covenants that until such time as the transactions contemplated by this Agreement Amendment are publicly disclosed by the Company as described in Section 4.66 of this Amendment, such New Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each New Purchaser understands and acknowledges, severally and not jointly with any other New Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock “against the box” prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no New Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement Amendment are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes 6 of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such PurchaserAmendment. Notwithstanding the foregoing, in the case of a New Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such New Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such New Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this AgreementAmendment.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchases or sales, including Short Sales Sales, of any of the Company’s securities during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6Company, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and any material non-public information provided to the information included in the Transaction Documents and the Disclosure SchedulesPurchaser. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced, (ii) no Purchaser shall be restricted or prohibited from effecting any transactions in any securities of the Company in accordance with applicable securities laws from and after the time that the transactions contemplated by this Agreement are first publicly announced as and (iii) no Purchaser shall have any duty of confidentiality to the Company or its subsidiaries with respect to the transactions contemplated by this Agreement after the issuance of the press release described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser6.6. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with itit will engage in any transactions, will execute including any Short Sales Sales, in the securities of the Company during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.4. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on its behalf or pursuant to any understanding with it will engage in any Short Sales in the securities of the Company during the period commencing at the Discussion Time and ending on the date the Closing 8-K is filed with the SEC ("Black-out Termination Date"). Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.4, such Purchaser will maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with respect to the Shares is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6Black-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaserout Termination Date. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate Affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included in Commission currently takes the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby position that it will not engage in Short Sales in the securities coverage of short sales of shares of the Company after Common Stock “against the time that box” prior to the transactions contemplated Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by this Agreement are first publicly announced as described in Section 4.6; providedthe Office of Chief Counsel, however, each Division of Corporation Finance. Each Purchaser agrees, severally and not jointly with any other Purchasers, that they it or any Person acting at the request or direction of Purchaser, will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any DebenturesPreferred Stock. For purposes of this Section 4.154.16, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, the Underlying Shares that have not yet been converted pursuant to and the Debentures and Warrant Shares that have not yet been exercised pursuant to the Preferred Stock and Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Shares, Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to held by such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included in Commission currently takes the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby position that it will not engage in Short Sales in the securities coverage of short sales of shares of the Company after Common Stock "against the time that box" prior to the transactions contemplated Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by this Agreement are first publicly announced as described in Section 4.6; providedthe Office of Chief Counsel, however, each Division of Corporation Finance. Each Purchaser agrees, severally and not jointly with any other Purchasers, that they it or any Person acting at the request or direction of Purchaser, will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.154.16, a “"Net Short Sale” " by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, the Underlying Shares and the Warrant Shares that have not yet been converted or exercised pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Shares, Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to held by such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included in Commission currently takes the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby position that it will not engage in Short Sales in the securities coverage of short sales of shares of the Company after Common Stock “against the time that box” prior to the transactions contemplated Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by this Agreement are first publicly announced as described in Section 4.6; providedthe Office of Chief Counsel, however, each Division of Corporation Finance. Each Purchaser agrees, severally and not jointly with any other Purchasers, that they it or any Person acting at the request or direction of Purchaser, will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.154.16, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, the Underlying Shares that have not yet been converted or exercised pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Shares, Underlying Shares and unexercised Warrant Shares (ignoring any exercise conversion limitations included therein) issuable to held by such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, The Purchaser covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with at the Discussion Time and ending at such the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such the Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no the Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each the Purchaser agrees, severally and not jointly with any other Purchasers, agrees that they it will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-6 month anniversary of the Closing Date or (y) the date that such the Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any the Purchaser shall mean a sale of Common Stock by such the Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such the Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such the Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such the Purchaser. Notwithstanding the foregoing, in the case of a the Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such the Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such the Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, Purchaser severally and not jointly with the other Purchasers, Purchasers covenants that neither it, it nor any Affiliate affiliates acting on its behalf or pursuant to any understanding with it, it will execute any Short Sales during the period commencing with after the Discussion Time and ending at on the earlier of the 180th calendar day following the date hereof or the date that such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6Purchaser no longer owns any Debentures. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain maintain, the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction transaction). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the information included Commission currently takes the position that coverage of short sales of shares of the Common Stock "against the box" prior to the Effective Date of the Registration Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in Item 65, Section 5 under Section A, of the Transaction Documents and Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Disclosure SchedulesOffice of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, other than as set forth in this Section 4.16, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debentures. For purposes of this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and conversion of the Shares, Series F-2 Preferred Stock or Preferred Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver via DTC Securities that are free of all restrictive and other legends prior to the settlement date for such sale (assuming that such electronic certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each PurchaserSuch Purchaser shall not, severally and shall cause its Trading Affiliates not jointly with to, engage, directly or indirectly, in any transactions in the other PurchasersCompany’s securities (including, covenants that neither itwithout limitation, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales involving the Company’s securities) during the period commencing with from the Discussion Time and ending at date hereof until the earlier of such time as (i) the transactions contemplated by this Agreement are first publicly announced as required by and described in Section 4.64.5 or (ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.5, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.5; provided, however, each Purchaser agrees, severally and not jointly with any other Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier earliest of (x) the 6Effective Date of the initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or (yz) the date that such Purchaser no longer holds any DebenturesSecurities. For purposes of this Section 4.154.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Conversion Shares that have not yet been converted issued pursuant to the Debentures and conversion of the Shares, Series A-2 Preferred Stock or Preferred Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Conversion Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares described in this sentence) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of event that a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s 's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s 's assets, the covenant representation set forth above shall apply only apply with respect to the portion of assets managed by the portfolio manager that made have knowledge about the investment decision to purchase the Securities covered financing transaction contemplated by this Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold Securities pursuant to Rule 144 prior to the Effective Date of the Resale Registration Statement and the Company has failed to deliver certificates without legends prior to the settlement date for such sale (assuming that such certificates meet the requirements set forth in Section 4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of Common Stock in settlement of such sale.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, nor any Affiliate acting on its behalf or pursuant to any understanding with it, will execute any Short Sales during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales in the securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6; providedexcept that, howeveruntil the expiration of the 6 month period immediately following the date hereof, each such Purchaser agrees, severally and not jointly with any the other Purchasers, covenants that they will not enter into neither it nor any Net Affiliate acting on its behalf or pursuant to any understanding with it, shall knowingly engage in any Short Sales, except on those days (each a “Permitted Day”) on which the aggregate short position with respect to the Common Stock of such Purchaser prior to giving effect to any Short Sales by such Purchaser on such Permitted Day does not exceed such Purchaser’s Permitted Share Position (as hereinafter defineddefined below) from on such Permitted Day; provided, however, that a Purchaser will only be entitled to engage in transactions that constitute Short Sales on a Permitted Day to the period commencing on extent that following such transaction, the Closing Date and ending on aggregate short position with respect to the date that is the earlier Common Stock of (x) the 6-month anniversary of the Closing Date or (y) the date that such Purchaser no longer holds any Debenturesdoes not exceed such Purchaser’s Permitted Share Position. For purposes of this Section 4.15, a Purchaser’s “Net Short SalePermitted Share Position” by means, with respect to any Purchaser shall mean a sale date of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by determination, the Purchaser, Underlying Shares that have not yet been converted pursuant to the Debentures and Warrant Shares that have not yet been exercised pursuant to the Warrants shall be deemed to be held long by the Purchaser, and the amount number of shares of Common Stock held in a long position shall be all unconverted Underlying owned by such Purchaser (including Shares, Warrant Shares and unexercised Warrant Shares (ignoring any exercise limitations included thereinshares purchased in the open market, prior transactions with the Company or otherwise) issuable to such Purchaser on such date, plus any the maximum number of shares of Common Stock that such Purchaser has a right to convert or exercise into pursuant to any outstanding securities of the Company (whether or not exercised or converted and without regard to any exercise caps or other Common Stock Equivalents (other than exercise restrictions applicable to the unconverted Underlying Shares and unexercised Warrant Shares described in this sentenceWarrants) otherwise then held by such Purchaser. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities covered by this Agreement.

Short Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not jointly with the other Purchasers, covenants that neither it, it nor any Affiliate acting on its behalf or pursuant to any understanding with it, it will execute any purchase or sale of Common Stock, including Short Sales Sales, during the period commencing with the Discussion Time and ending at such time the transactions contemplated by this Agreement are first publicly announced as described in Section 4.64.2. Each Purchaser, severally and not jointly with the other Purchasers, covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.64.2, such Purchaser will maintain the confidentiality of the existence and terms of this transaction and the information included in the Transaction Documents and the Disclosure Schedules. Notwithstanding the foregoing, and notwithstanding anything contained in this Agreement to the contrary, the Company expressly acknowledges and agrees that (i) no Purchaser makes any representation, warranty or covenant hereby that it will not engage in Short Sales effecting transactions in the any securities of the Company after the time that the transactions contemplated by this Agreement are first publicly announced pursuant to the initial press release as described in Section 4.6; provided4.2, however, each (ii) no Purchaser agrees, severally and not jointly with shall be restricted or prohibited from effecting any other Purchasers, that they will not enter into transactions in any Net Short Sales (as hereinafter defined) from the period commencing on the Closing Date and ending on the date that is the earlier of (x) the 6-month anniversary securities of the Closing Date or (y) Company in accordance with applicable securities laws from and after the date time that such Purchaser no longer holds any Debentures. For purposes of the transactions contemplated by this Section 4.15, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser that is marked as a short sale and that is made at a time when there is no equivalent offsetting long position in Common Stock held by such Purchaser. For purposes of determining whether there is an equivalent offsetting long position in Common Stock held by the Purchaser, Underlying Shares that have not yet been converted Agreement are first publicly announced pursuant to the Debentures initial press release as described in Section 4.2 and Warrant Shares that (iii) no Purchaser shall have any duty of confidentiality or duty not yet been exercised pursuant to trade in the securities of the Company to the Warrants shall be deemed to be held long by Company or its Subsidiaries after the Purchaser, and issuance of the amount of shares of Common Stock held in a long position shall be all unconverted Underlying Shares and unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such Purchaser on such date, plus any shares of Common Stock or other Common Stock Equivalents (other than the unconverted Underlying Shares and unexercised Warrant Shares initial press release as described in this sentence) otherwise then held by such PurchaserSection 4.2. Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the covenant set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that made the investment decision to purchase the Securities Shares covered by this Agreement.