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

Short Sales and Confidentiality Prior To The Date Hereof. Other than the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Purchaser, executed any transaction, including short sales, in the securities of the Company during the period commencing from the time that such Purchaser was first contacted by the Company or any other person disclosing the material terms of the transactions contemplated hereunder until the date hereof. Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had or has knowledge of the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, 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 the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purpose. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, to the Company in connection with the transactions contemplated hereby.

Short Sales and Confidentiality Prior To The Date Hereof. Other than the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person acting on behalf of or pursuant to any understanding with such Purchaser, executed any transaction, including short sales, in the securities of the Company during the period commencing from the time that such Purchaser was first contacted by the Company or any other person disclosing the material terms of the transactions contemplated hereunder until the date hereof. Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had or has knowledge of the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) Stock “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, 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 the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes Securities pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purpose. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, to the Company in connection with the transactions contemplated hereby.

Short Sales and Confidentiality Prior To The Date Hereof. Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectlynot, nor has any person Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any transactionpurchases or sales, including short salesShort Sales, in of the securities of the Company during the period commencing from the time that such Purchaser was first contacted by received a term sheet (written or oral) from the Company or any other person disclosing Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereof(“Discussion Time”). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had or has knowledge of made the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation of Section 5 of investment decision to purchase the Securities Actcovered by this Agreement. Other than to other Persons party to this Agreement, as set forth such Purchaser has maintained the confidentiality of all disclosures made to it in Item 65, Section 5 under Section A, connection with this transaction (including the existence and terms of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Financethis transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each The Company acknowledges and agrees that the representations contained in Section 3.2 shall not modify, amend or affect such Purchaser’s right to rely on the Company’s representations and warranties made contained in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for or any other purpose. Accordingly, the Company may not rely on such representations and warranties for contained in any other purpose. No Purchaser has made Transaction Document or hereby makes any other representations document or warranties, express or implied, to the Company instrument executed and/or delivered in connection with this Agreement or the transactions consummation of the transaction contemplated hereby.

Short Sales and Confidentiality Prior To The Date Hereof. Other than the transactions contemplated hereunder, such Purchaser has not directly or indirectlynot, nor has any person Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any transactionpurchases or dispositions, including short salesShort Sales, in of the securities of the Company during the period commencing from the time that such Purchaser was first contacted by received a term sheet (written or oral) from the Company or any other person disclosing Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereofhereof (“Discussion Time”) (and with respect to Purchasers that are entities affiliated with Axxxxxx and S. Xxxxxxxxxxxx Advisers, LLC and accounts that it manages, such representation is made only since the time that such Purchaser first became aware that the Offering was contemplated). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 or a Purchaser with multiple portfolio manager who manage assets for multiple accounts, 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had or has knowledge of made the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation of Section 5 of investment decision to purchase 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 covered by the Office of Chief Counsel, Division of Corporation Financethis Agreement. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect Other than to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant other Persons party to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purpose. AccordinglyAgreement, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has maintained the confidentiality of all disclosures made or hereby makes any other representations or warranties, express or implied, to the Company it in connection with this transaction (including the transactions contemplated herebyexistence and terms of this transaction).

Short Sales and Confidentiality Prior To The Date Hereof. Other than the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any transactiondisposition, including short salesShort Sales (but not including the location and/or reservation of borrowable Ordinary Shares represented by the ADSs), in the securities of the Company during the period commencing from on the time that date such Purchaser was first contacted by the Company or any other person disclosing the material terms learned of the transactions contemplated hereunder until the date hereofhereof (“Discussion Time”). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had or has knowledge of made the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that investment decision to purchase the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed Shares covered by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, 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 the Office of Chief Counsel, Division of Corporation Financethis Agreement. Notwithstanding the foregoing, for avoidance in the case of doubtXxxxxx Xxxxxxx & Co. Incorporated, nothing contained herein the representation set forth above shall constitute a representation only apply with respect to activity by the Principal Strategies Group that made the investment decision to purchase the Shares covered by this Agreement; provided, however, that all employees of Xxxxxx Xxxxxxx & Co. Incorporated who are managing activities other than those relating to the purchase of Shares under this Agreement have no direct knowledge of the investment decision made by the Principal Strategies Group to purchase the Shares covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). The Company acknowledges and agrees that each Purchaser does not make or warranty, has not made any representations or preclude any actions, warranties with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made contemplated hereby other than those specifically set forth in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purpose. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, to the Company in connection with the transactions contemplated herebySection 3.2.

Short Sales and Confidentiality Prior To The Date Hereof. Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectlynot, nor has any person Person acting on behalf of or pursuant to any understanding with such Purchaser, directly or indirectly executed any transactionpurchases or sales, including short salesShort Sales, in of the securities of the Company during the period commencing from the time that such Purchaser was first contacted by received a term sheet (written or oral) from the Company or any other person disclosing Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereofhereof ("Discussion Time"). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). The Company acknowledges and agrees that each Purchaser does not make or has knowledge of not made any representations or warranties with respect to the transactions contemplated hereinhereby other than those specifically set forth in this Section 3.2. OTHER AGREEMENTS OF THE PARTIES Transfer Restrictions. The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or Rule 144, to the Company or to an affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of a Purchaser under this Agreement and the Registration Rights Agreement. The Purchasers agree to the imprinting, so long as is required by this Section 4.1(b), of a legend on any of the Securities in the following form: THESE SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THESE SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN WITH A FINANCIAL INSTITUTION THAT IS AN "ACCREDITED INVESTOR" AS DEFINED IN RULE 501(a) UNDER THE SECURITIES ACT. The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an "accredited investor" as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and the Registration Rights Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser's expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders thereunder. Certificates evidencing the Shares and Warrant Shares shall not contain any legend (including the legend set forth in Section 4.1(b)), (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, or (ii) following any sale of such Shares or Warrant Shares pursuant to Rule 144, or (iii) if such Shares or Warrant Shares are eligible for sale under Rule 144(k), or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the Staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Company's transfer agent promptly after the Effective Date if required by the Company's transfer agent to effect the removal of the legend hereunder. If all or any portion of a Warrant is exercised at a time when there is an effective registration statement to cover the resale of the Warrant Shares, such Warrant Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.1(c), it will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Company's transfer agent of a certificate representing Shares or Warrant Shares, as the case may be, issued with a restrictive legend (such date, the "Legend Removal Date"), deliver or cause to be delivered to such Purchaser a certificate representing such Securities that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to any transfer agent of the Company that enlarge the restrictions on transfer set forth in this Section. Certificates for Securities subject to legend removal hereunder shall be transmitted by the transfer agent of the Company to the Purchasers by crediting the account of the Purchaser's prime broker with the Depository Trust Company System. In addition to such Purchaser's other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $500 of Shares or Warrant Shares (based on the Closing Price of the Common Stock on the date such Securities are submitted to the Company's transfer agent) subject to Section 4.1(c), $5 per Trading Day (increasing to $10 per Trading Day five (5) Trading Days after such damages have begun to accrue and increasing to $15 per Trading Day ten (10) Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered. Nothing herein shall limit such Purchaser's right to pursue actual damages for the Company's failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. Each Purchaser understands and acknowledgesPurchaser, severally and not jointly with any the other PurchaserPurchasers, agrees that the SEC currently takes the position that entering into a short sale removal of the restrictive legend from certificates representing Securities as set forth in this Section 4.1 is predicated upon the Company’s common stock, par value $0.01 per share ('s reliance that the “Common Stock”) “against Purchaser will sell any Securities pursuant to either the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation of Section 5 registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom. Furnishing of Information . As long as set forth any Purchaser owns Securities, the Company covenants to timely file (or obtain extensions in Item 65respect thereof and file within the applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to the Exchange Act. As long as any Purchaser owns Securities, Section 5 if the Company is not required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Purchasers and make publicly available in accordance with Rule 144(c) such information as is required for the Purchasers to sell the Securities under Section ARule 144. The Company further covenants that it will take such further action as any holder of Securities may reasonably request, all to the extent required from time to time to enable such Person to sell such Securities without registration under the Securities Act within the limitation of the Manual exemptions provided by Rule 144. Integration . The Company shall not sell, offer for sale or solicit offers to buy or otherwise negotiate in respect of Publicly Available Telephone Interpretationsany security (as defined in Section 2 of the Securities Act) that would be integrated with the offer or sale of the Securities in a manner that would require the registration under the Securities Act of the sale of the Securities to the Purchasers or that would be integrated with the offer or sale of the Securities for purposes of the rules and regulations of any Trading Market such that it would require shareholder approval prior to the closing of such other transaction unless shareholder approval is obtained before the closing of such subsequent transaction. Securities Laws Disclosure; Publicity. The Company shall, dated July 1997, compiled by the Office fourth Trading Day following the date hereof, issue a Current Report on Form 8-K, reasonably acceptable to each Purchaser disclosing the material terms of Chief Counselthe transactions contemplated hereby, Division of Corporation Financeand shall attach the Transaction Documents thereto. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute The Company may also issue a representation or warranty, or preclude any actions, press release with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the futurecontemplated by this Agreement. Each Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and The Purchasers shall not for issue any other purpose. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, to the Company in connection with press release regarding the transactions contemplated herebyby this Agreement without written consent of the Company, which consent shall not be unreasonably be withheld. The Company shall not publicly disclose the name of any Purchaser, or include the name of the Purchaser in any filing with any governmental authority or Trading Market, without the prior written consent of the Purchaser, except (i) as required by federal securities law and (ii) to the extent such disclosure is required by law or regulations or listing agreements, in which case the Company shall provide such Purchaser with prior notice of such disclosure permitted under subclause (i) or (ii).

Short Sales and Confidentiality Prior To The Date Hereof. Other than consummating the transactions contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any transactionpurchases or sales, including short salesShort Sales, in of the securities of the Company during the period commencing from the time that such Purchaser was first contacted by received a term sheet (written or oral) from the Company or any other person disclosing Person representing the Company setting forth the material terms of the transactions contemplated hereunder until the date hereofhereof ("Discussion Time"). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had made the investment decision to purchase the Securities covered by this Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). The Securities may only be disposed of in compliance with state and federal securities laws. In connection with any transfer of Securities other than pursuant to an effective registration statement or has knowledge Rule 144, to the Company or to an Affiliate of a Purchaser or in connection with a pledge as contemplated in Section 4.1(b), the Company may require the transferor thereof to provide to the Company an opinion of counsel selected by the transferor and reasonably acceptable to the Company, the form and substance of which opinion shall be reasonably satisfactory to the Company, to the effect that such transfer does not require registration of such transferred Securities under the Securities Act. As a condition of transfer, any such transferee shall agree in writing to be bound by the terms of this Agreement and shall have the rights of a Purchaser under this Agreement and the Registration Rights Agreement. Upon a cashless exercise of the transactions contemplated hereinWarrant, the holding period for purposes of Rule 144 shall tack back to the original date of issuance of such Warrant. The Purchasers agree to the imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities in the following form: [NEITHER] THIS SECURITY [NOR THE SECURITIES INTO WHICH THIS SECURITY IS [EXERCISABLE] [CONVERTIBLE]] HAS [NOT] BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. THIS SECURITY [AND THE SECURITIES ISSUABLE UPON [EXERCISE] [CONVERSION] OF THIS SECURITY] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN SECURED BY SUCH SECURITIES. The Company acknowledges and agrees that a Purchaser may from time to time pledge pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security interest in some or all of the Securities to a financial institution that is an "accredited investor" as defined in Rule 501(a) under the Securities Act and who agrees to be bound by the provisions of this Agreement and the Registration Rights Agreement and, if required under the terms of such arrangement, such Purchaser may transfer pledged or secured Securities to the pledgees or secured parties. Such a pledge or transfer would not be subject to approval of the Company and no legal opinion of legal counsel of the pledgee, secured party or pledgor shall be required in connection therewith. Further, no notice shall be required of such pledge. At the appropriate Purchaser's expense, the Company will execute and deliver such reasonable documentation as a pledgee or secured party of Securities may reasonably request in connection with a pledge or transfer of the Securities, including, if the Securities are subject to registration pursuant to the Registration Rights Agreement, the preparation and filing of any required prospectus supplement under Rule 424(b)(3) under the Securities Act or other applicable provision of the Securities Act to appropriately amend the list of Selling Stockholders thereunder. Certificates evidencing the Underlying Shares shall not contain any legend (including the legend set forth in Section 4.1(b) hereof): (i) while a registration statement (including the Registration Statement) covering the resale of such security is effective under the Securities Act, or (ii) following any sale of such Underlying Shares pursuant to Rule 144, or (iii) if such Underlying Shares are eligible for sale under Rule 144(k), or (iv) if such legend is not required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission). The Company shall cause its counsel to issue a legal opinion to the Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect the removal of the legend hereunder. If all or any portion of a Debenture or Warrant is converted or exercised (as applicable) at a time when there is an effective registration statement to cover the resale of the Underlying Shares, or if such Underlying Shares may be sold under Rule 144(k) or if such legend is not otherwise required under applicable requirements of the Securities Act (including judicial interpretations and pronouncements issued by the staff of the Commission) then such Underlying Shares shall be issued free of all legends. The Company agrees that following the Effective Date or at such time as such legend is no longer required under this Section 4.1(c), it will, no later than three Trading Days following the delivery by a Purchaser to the Company or the Transfer Agent of a certificate representing Underlying Shares, as applicable, issued with a restrictive legend (such third Trading Day, the "Legend Removal Date"), deliver or cause to be delivered to such Purchaser a certificate representing such shares that is free from all restrictive and other legends. The Company may not make any notation on its records or give instructions to the Transfer Agent that enlarge the restrictions on transfer set forth in this Section. Certificates for Underlying Shares subject to legend removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by crediting the account of the Purchaser's prime broker with the Depository Trust Company System as directed by such Purchaser. In addition to such Purchaser's other available remedies, the Company shall pay to a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on the date such Securities are submitted to the Transfer Agent) delivered for removal of the restrictive legend and subject to Section 4.1(c), $5 per Trading Day (increasing to $10 per Trading Day 5 Trading Days after such damages have begun to accrue) for each Trading Day after the Legend Removal Date until such certificate is delivered without a legend. Nothing herein shall limit such Purchaser's right to pursue actual damages for the Company's failure to deliver certificates representing any Securities as required by the Transaction Documents, and such Purchaser shall have the right to pursue all remedies available to it at law or in equity including, without limitation, a decree of specific performance and/or injunctive relief. Each Purchaser understands and acknowledgesPurchaser, severally and not jointly with the other Purchasers, agrees that such Purchaser will sell any other Purchaser, that Securities pursuant to either the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation of Section 5 registration requirements of the Securities Act, including any applicable prospectus delivery requirements, or an exemption therefrom, and that if Securities are sold pursuant to a Registration Statement, they will be sold in compliance with the plan of distribution set forth therein, and acknowledges that the removal of the restrictive legend from certificates representing Securities as set forth in Item 65, this Section 5 under Section A, of 4.1 is predicated upon the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made in Company's reliance upon this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purpose. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, to the Company in connection with the transactions contemplated herebyunderstanding.

Short Sales and Confidentiality Prior To The Date Hereof. Other than consummating the transactions contemplated hereunder, such Purchaser Investor has not directly or indirectlynot, nor has any person Person acting on behalf of or pursuant to any understanding with such PurchaserInvestor, directly or indirectly executed any transactionpurchases or sales, including short salesShort Sales, in of the securities of the Company during the period commencing from as of the time that such Purchaser was Investor first contacted by communicated with the Company or any other person disclosing the material terms of regarding the transactions contemplated hereunder until hereby and ending immediately prior to the date hereof. Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation 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 and (ii) in the case of an Investor that is affiliated with other funds or investment vehicles or whose investment advisor or sub-advisor that routinely acts on behalf of or pursuant to an understanding with such Investor is also an investment advisor or sub-advisor to other funds or investment vehicles, the representation set forth above shall only apply with respect to the personnel of such other funds or investment vehicles or such investment advisor or sub-advisor who had or has knowledge of the transactions transaction contemplated herein. Each Purchaser understands and acknowledges, severally hereby and not jointly with respect to any personnel who have been effectively walled off by appropriate information barriers. Other than to other PurchaserPersons party to this Agreement and other than to such Person’s outside attorney, that accountant, auditor or investment advisor only to the SEC currently takes the position that entering into a short sale extent necessary to permit evaluation of the Company’s common stockinvestment, par value $0.01 per share (and the “Common Stock”) “against the box” while holding unregistered shares performance of the Common Stocknecessary or required tax, followed accounting, financial, legal, or administrative tasks and services and other than as may be required by coverage law, such Investor has maintained the confidentiality of all disclosures made to it in connection with this transaction (including the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation existence and terms 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 Financethis transaction). Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or preclude any actions, with respect to the identification of the availability of, or securing of, available shares to borrow in order to effect short sales Short Sales or similar transactions in the future. Each Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purpose. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, to the Company in connection with the transactions contemplated hereby.

Short Sales and Confidentiality Prior To The Date Hereof. Other than During the transactions contemplated hereunderlast thirty (30) days prior to the date hereof, neither such Purchaser has not nor any Affiliate of such Purchaser, foreign or domestic, has, directly or indirectly, nor has effected or agreed to effect any person acting on behalf Short Sale, whether or not against the box, established any “put equivalent position” (as defined in Rule 16a-1(h) under the Exchange Act) with respect to the Common Stock, borrowed or pre-borrowed any shares of Common Stock, or pursuant granted any other right (including, without limitation, any put or call option) with respect to the Common Stock or with respect to any understanding with such Purchasersecurity that includes, executed relates to or derived any transaction, including short sales, significant part of its value from the Common Stock or otherwise sought to hedge its position in the securities of the Company during the period commencing from the time that such Purchaser was first contacted by the Company or any other person disclosing the material terms of the transactions contemplated hereunder until the date hereofSecurities (each, a “Prohibited Transaction”). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) in the case of a Purchaser and/or its Affiliates that is is, individually or collectively, a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s or Affiliates 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 or Affiliates assets, the representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager managers that had or has have knowledge about the financing transaction contemplated by this Agreement and (ii) in the case of LB I Group Inc., the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation of Section 5 of the Securities Act, as representation set forth in Item 65, this 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. Notwithstanding the foregoing, for avoidance of doubt, nothing contained herein 4.9 shall constitute a representation or warranty, or preclude any actions, only apply with respect to the identification Equity Strategies Group - Opportunity Fund of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made in this Article 2 are made solely for the purpose of permitting the Company to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws Xxxxxx Brothers Holdings Inc. and not for to any other purposepersons, affiliates or affiliated or associated business units thereof. Accordingly, the Company may not rely on such representations and warranties for any other purpose. No Such Purchaser has maintained the confidentiality of all disclosures made or hereby makes any other representations or warranties, express or implied, to the Company it in connection with this transaction (including the transactions contemplated herebyexistence and terms of this transaction) other than to other Persons that are a party to this Agreement.

Short Sales and Confidentiality Prior To The Date Hereof. Other than the transactions transaction contemplated hereunder, such Purchaser has not directly or indirectly, nor has any person Person acting on behalf of or pursuant to any understanding with such Purchaser, executed any transactiondisposition, including short salesShort Sales, in the securities of the Company during the period commencing from the time that such Purchaser was first contacted by received a term sheet from the Company or any other person disclosing Person setting forth the material terms of the transactions contemplated hereunder until the date hereofhereof (“Discussion Time”). Notwithstanding the foregoing, (i) in the case of LB I Group Inc., the representation set forth above shall only apply with respect to the Global Trading Strategies group of Xxxxxx Brothers Holdings Inc. and (ii) 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 representation set forth above shall only apply with respect to the portion of assets managed by the portfolio manager that had or has knowledge of made the transactions contemplated herein. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the SEC currently takes the position that entering into a short sale of the Company’s common stock, par value $0.01 per share (the “Common Stock”) “against the box” while holding unregistered shares of the Common Stock, followed by coverage of the short sale with such shares after the Registration Statement has been declared effective by the SEC, is a violation of Section 5 of investment decision to purchase the Securities Actcovered by this Agreement. Other than to other Persons party to this Agreement, as set forth such Purchaser has maintained the confidentiality of all disclosures made to it in Item 65, Section 5 under Section A, connection with this transaction (including the existence and terms of the Manual of Publicly Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel, Division of Corporation Financethis transaction). Notwithstanding the foregoing, for avoidance with respect to LB I Group Inc., the representation contained in this Section 3.2(e) shall only apply to the Global Trading Strategies group, as currently configured, of doubtXxxxxx Brothers Inc., nothing contained herein and shall constitute a representation not apply to any other affiliate, subsidiary, business unit, area, group or warranty, or preclude any actionsdivision of Xxxxxx Brothers Inc. Notwithstanding the foregoing, with respect to Banc of America Strategic Investments Corporation, the identification of the availability of, or securing of, available shares to borrow in order to effect short sales or similar transactions in the future. Each Purchaser’s representations and warranties made covenants contained in this Article 2 are made solely for the purpose Section 3.2(e) shall only apply to Banc of permitting the Company America Strategic Investments Corporation, as currently configured, and shall not apply to make a determination that the offer and sale of the Notes pursuant to this Agreement comply with applicable U.S. federal and state securities laws and not for any other purposeaffiliate, subsidiary, business unit, area, group or division of Bank of America Corporation. Accordingly, the The Company may acknowledges and agrees that each Purchaser does not rely on such representations and warranties for make or has not made any other purpose. No Purchaser has made or hereby makes any other representations or warranties, express or implied, warranties with respect to the Company in connection with the transactions contemplated herebyhereby other than those specifically set forth in this Section 3.2.