Common use of SHORT SALES AND CONFIDENTIALITY Clause in Contracts

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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, 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. Each Purchaser severally and Other than the transaction contemplated hereunder, the Subscriber has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Subscriber, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of Common Stock), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the Subscriber 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 that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.67(m). Each Purchaser, severally and not jointly with the other Purchasers, The Subscriber covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.67(m), such Purchaser the Subscriber will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Subscriber understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "“against the box" ” prior to the Effective Date effective date of the Registration Statement with the Purchased Securities is a violation of Section 5 of the Securities 1933 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, no Purchaser makes the Subscriber does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.67(m). Notwithstanding the foregoing, in the case of a Purchaser Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserSubscriber's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserSubscriber'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 Purchased Securities covered by this Agreement.

SHORT SALES AND CONFIDENTIALITY. Each The Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales “short sales” during the period after commencing 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 and ending at 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, The Purchaser covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.6Company, 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). Each The Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "Shares “against the box" ” prior to the Effective Date of the Registration Statement with covering 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 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 “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 4.6announced. 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. Each Purchaser Purchaser, severally and not jointly with the other Purchasers Purchasers, covenants that neither it it, nor any affiliates Affiliate acting on its behalf or pursuant to any understanding with it it, will execute any Short Sales during the period commencing on the date hereof and ending on the one year anniversary after the Discussion Time and ending at the time that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6Underlying Shares have been registered. 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)transaction and the information included in the Transaction Documents and the Disclosure Schedules. Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that coverage of short sales of shares Until all of the Common Stock "against Purchaser’s Securities are sold, neither the box" prior Purchaser nor its agents, representatives and affiliates shall in any manner whatsoever enter into or effect, directly or indirectly, any Short Sale or hedging transaction which establishes a net short position with respect to the Effective Date Common Stock. After the one year anniversary 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 the Office of Chief Counsel, Division of Corporation Finance. Notwithstanding the foregoingdate hereof, 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 4.6Company. 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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, 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at until prior to 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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, 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at until prior to 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission 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 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, 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. 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at upon the time that earlier of (i) the transactions contemplated by this Agreement are first publicly announced as described in Section 4.61 year anniversary of the date hereof and (ii) the Effective Date of the Registration Statement. 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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 earlier of (i) the transactions contemplated by this Agreement are first publicly announced as described in Section 4.61 year anniversary of the date hereof and (ii) the Effective Date of the Registration Statement. 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales “short sales” during the period after commencing 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 and ending at 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "Shares “against the box" ” prior to the Effective Date of the Registration Statement with covering 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 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 “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 4.6announced. 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period after the Discussion Time and ending at date that such Purchaser first received a term sheet from the time Company or any other person or entity setting forth the material terms of the transactions contemplated hereunder until the date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.63.10. 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 4.63.10, 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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 4.63.10. 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. Each Purchaser covenants and agrees that it will (i) comply with Regulation M under the Exchange Act, (ii) comply with all prospectus delivery requirements and (iii) will not knowingly violate Regulation SHO under the Exchange Act. The Company further understands and acknowledges that (a) each Purchaser may engage in hedging activities at various times while the Securities are outstanding, including, without limitation, during any amortization pricing periods under the Notes in which the value of the Conversion Shares issuable upon conversion of the Notes is being determined and (b) such hedging activities (if any) could reduce the value of the existing stockholders’ equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of this Agreement or the other Transaction Documents. For purposes hereof, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at 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 Holding 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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. 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period after the Discussion Time and ending at date that such Purchaser first received a term sheet from the time Company or any other person or entity setting forth the material terms of the transactions contemplated hereunder until the date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.63.10. 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 4.63.10, 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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, 16 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 4.63.10. 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. Each Purchaser covenants and agrees that it will (i) comply with Regulation M under the Exchange Act, (ii) comply with all prospectus delivery requirements and (iii) will not knowingly violate Regulation SHO under the Exchange Act. The Company further understands and acknowledges that (a) each Purchaser may engage in hedging activities at various times while the Securities are outstanding, including, without limitation, during any amortization pricing periods under the Notes in which the value of the Conversion Shares issuable upon conversion of the Notes is being determined and (b) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of this Agreement or the other Transaction Documents. For purposes hereof, "Short Sales" shall include all "short sales" as defined in Rule 200 of Regulation SHO under the Exchange Act.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and Other than the transaction contemplated hereunder, the Subscriber has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Subscriber, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of common stock), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the Subscriber 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 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, The Subscriber 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 the Subscriber will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Subscriber understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "common stock “against the box" ” prior to the Effective Date effective date of the Registration Statement with the Purchased Securities is a violation of Section 5 of the Securities 1933 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, no Purchaser makes the Subscriber does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6announced. Notwithstanding the foregoing, in the case of a Purchaser Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser's Subscriber’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 Subscriber’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 Purchased Securities covered by this Agreement.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period after the Discussion Time and ending at date that such Purchaser first received a term sheet from the time Company or any other person or entity setting forth the material terms of the transactions contemplated hereunder until the date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.63.11. 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 4.63.11, 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "“against the box" ” prior to the Effective Date effective date of the Registration Statement registration statement providing for the resale of the Conversion Shares and the Warrant Shares 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 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 4.63.11. 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.. Each Purchaser covenants and agrees that it will (i) comply with Regulation M under the Exchange Act, (ii) comply with all prospectus delivery requirements and (iii) will not knowingly violate Regulation SHO under the Exchange Act. For purposes hereof, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act. TABLE OF CONTENTS (continued) Page

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates or agents acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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. 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period after the Discussion Time and ending at date that such Purchaser first received a term sheet from the time Company or any other person or entity setting forth the material terms of the transactions contemplated hereunder until the date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.63.10. 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 4.63.10, 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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 4.63.10. 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. Each Purchaser covenants and agrees that it will (i) comply with Regulation M under the Exchange Act, (ii) comply with all prospectus delivery requirements and (iii) will not knowingly violate Regulation SHO under the Exchange Act. The Company further understands and acknowledges that (a) each Purchaser may engage in hedging activities at various times while the Securities are outstanding, including, without limitation, during any amortization pricing periods under the Notes in which the value of the Conversion Shares issuable upon conversion of the Notes is being determined and (b) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of this Agreement or the other Transaction Documents. For purposes hereof, “Short Sales” shall include all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange Act.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and Other than the transaction contemplated hereunder, the Subscriber has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Subscriber, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of Common Stock), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the Subscriber first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6hereunder. Each Purchaser, severally and not jointly with the other Purchasers, The Subscriber covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.67(m), such Purchaser the Subscriber will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Subscriber understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "“against the box" ” prior to the Effective Date effective date of the Registration Statement with the Purchased Securities is a violation of Section 5 of the Securities 1933 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, no Purchaser makes the Subscriber does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.67(m). Notwithstanding the foregoing, in the case of a Purchaser Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserSubscriber's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserSubscriber'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 Purchased Securities covered by this Agreement.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and Other than the transaction contemplated hereunder, the Subscriber has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Subscriber, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of Common Stock), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the Subscriber 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 that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.68(m). Each Purchaser, severally and not jointly with the other Purchasers, The Subscriber covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.68(m), such Purchaser the Subscriber will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Subscriber understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "“against the box" ” prior to the Effective Date effective date of the Registration Statement with the Securities Purchased Shares is a violation of Section 5 of the Securities 1933 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, no Purchaser makes the Subscriber does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.68(m). Notwithstanding the foregoing, in the case of a Purchaser Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserSubscriber's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserSubscriber'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 Purchased Shares covered by this Agreement.

SHORT SALES AND CONFIDENTIALITY. Each Other than the transaction contemplated hereunder, the Purchaser severally and has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Purchaser, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of the Shares), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the Purchaser first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6hereunder. 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 4.65(c), such the 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). Each The Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "Shares “against the box" ” prior to the Effective Date effective date of the Registration Statement with the Securities Shares is a violation of Section 5 of the Securities 1933 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, no the Purchaser makes does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.65(c). 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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, 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. Each Purchaser severally and Other than the transaction contemplated hereunder, the Subscriber has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Subscriber, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of Preferred Stock), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the transactions contemplated by this Agreement are Subscriber first publicly announced as described in Section 4.6received a term sheet from the Company or any other person setting forth the material terms of the Contemplated Transactions. Each Purchaser, severally and not jointly with the other Purchasers, The Subscriber covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.67(m), such Purchaser the Subscriber will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Subscriber understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "common stock “against the box" ” prior to the Effective Date effective date of the Registration Statement with the Securities Purchased Shares 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, no Purchaser makes the Subscriber does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.67(m). Notwithstanding the foregoing, in the case of a Purchaser Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such Purchaser's Subscriber’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 Subscriber’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 Purchased Shares covered by this Agreement.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser Purchaser, severally and not jointly with the other Purchasers Purchasers, covenants that neither it nor any affiliates Affiliate acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after commencing at the Discussion Time and ending at 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 and the information included in the Disclosure Schedules. Each Purchaser understands and acknowledges, severally and not jointly with any other PurchaserPurchaser understands and acknowledges, and agrees, to act in a manner that will not violate the positions of the 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 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, 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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales during the period after the Discussion Time and ending at until prior to 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 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, 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. Each Purchaser severally and Other than the transaction contemplated hereunder, the Subscriber has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Subscriber, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of the Shares), in the securities of the Company during the period after the Discussion Time and ending at commencing from the time that the Subscriber first received a term sheet from the Company or any other person setting forth the material terms of the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6hereunder. Each Purchaser, severally and not jointly with the other Purchasers, The Subscriber covenants that until such time as the transactions contemplated by this Agreement are publicly disclosed by the Company as described in Section 4.65(c), such Purchaser the Subscriber will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Subscriber understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission currently takes the position that coverage of short sales of shares of the Common Stock "Shares “against the box" ” prior to the Effective Date effective date of the Registration Statement with the Securities Shares is a violation of Section 5 of the Securities 1933 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, no Purchaser makes the Subscriber does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.65(c). Notwithstanding the foregoing, in the case of a Purchaser Subscriber that is a multi-managed investment vehicle whereby separate portfolio managers manage separate portions of such PurchaserSubscriber's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserSubscriber'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. Each Purchaser severally and not jointly with the other Purchasers covenants that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will execute any Short Sales (as defined below) during the period after the Discussion Time and ending at date that such Purchaser first received a term sheet from the time Company or any other person or entity setting forth the material terms of the transactions contemplated hereunder until the date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.63.10. 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 4.63.10, 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). Each Purchaser understands and acknowledges, severally and not jointly with any other Purchaser, that the 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 date that the Commission declares the Registration Statement with (as defined in the Securities Registration Rights Agreement) effective 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, 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 4.63.10. 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. Each Purchaser covenants and agrees that it will (i) comply with Regulation M under the Exchange Act, (ii) comply with all prospectus delivery requirements and (iii) will not knowingly violate Regulation SHO under the Exchange Act. The Company further understands and acknowledges that (a) each Purchaser may engage in hedging activities at various times while the Securities are outstanding, including, without limitation, during any amortization pricing periods under the Notes in which the value of the Conversion Shares issuable upon conversion of the Notes is being determined and (b) such hedging activities (if any) could reduce the value of the existing stockholders' equity interests in the Company at and after the time that the hedging activities are being conducted. The Company acknowledges that such aforementioned hedging activities do not constitute a breach of this Agreement or the other Transaction Documents. For purposes hereof, "Short Sales" shall include all "short sales" as defined in Rule 200 of Regulation SHO under the Exchange Act.

SHORT SALES AND CONFIDENTIALITY. Each Purchaser severally and Other than the transaction contemplated hereunder, the Buyer has not jointly with the other Purchasers covenants that neither it directly or indirectly, nor has any affiliates person acting on its behalf of or pursuant to any understanding with it will execute the Buyer, executed any Short Sales disposition, including short sales (but not including the location and/or reservation of borrowable shares of Common Stock), in the securities of the Company during the period after the Discussion Time and ending at commencing from the 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 until the date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6by the Company. 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 4.6Company, such Purchaser the Buyer will maintain, maintain the confidentiality of all disclosures made to it in connection with this transaction (including the existence and terms of this transaction). Each Purchaser The Buyer understands and acknowledges, severally and not jointly with any other Purchaser, acknowledges that the Commission SEC currently takes the position that coverage of short sales of shares of the Common Stock "“against the box" ” prior to the Effective Date effective date of the Registration Statement a registration statement with the Securities is a violation of Section 5 of the Securities 1933 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, no Purchaser makes the Buyer does not make any representation, warranty or covenant hereby that it will not engage in Short Sales short sales in the securities of the Company after the time date that the transactions contemplated by this Agreement are first publicly announced as described in Section 4.6by the Company. 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 PurchaserBuyer's assets and the portfolio managers have no direct knowledge of the investment decisions made by the portfolio managers managing other portions of such PurchaserBuyer'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.. Article 6