Common use of Irrevocable Transfer Agent Instructions Clause in Contracts

Irrevocable Transfer Agent Instructions. (a) The Company shall promptly issue and deliver to the Company’s transfer agent (the “Transfer Agent”) irrevocable instructions in form and substance acceptable to the Holder in its sole discretion which shall instruct the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) (the “Instructions”). If the Instructions have not been issued and delivered to the Transfer Agent by the Company by the Scheduled Standstill Expiration Date, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer Agent, the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable that the parties endeavor to resolve any disagreement there may be as to the number of Pre-Installment Conversion Shares to be issued, no failure on the part of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do). Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this Agreement, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Note, to pay the Event of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company.

Irrevocable Transfer Agent Instructions. (a) The Company shall promptly issue irrevocable instructions to its transfer agent, and deliver any subsequent transfer agent to issue to the CompanyPurchasers (or in such nominee’s transfer agent name(s) as designated by a Purchaser) book-entry notations representing the shares of Class A Common Stock set forth next to such Purchaser’s name on the Schedule of Purchasers (the “Irrevocable Transfer AgentAgent Instructions”) and, upon exercise of the Pre-Funded Warrants pursuant to their terms, the Company shall issue irrevocable instructions in form to its transfer agent, and substance acceptable any subsequent transfer agent to issue to the Holder Purchasers (or in its sole discretion which shall instruct such nominee’s name(s) as designated by a Purchaser), book-entry notations representing the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) Underlying Class A Common Stock (the “Warrant Share Instructions”). If The Company represents and warrants that no instruction other than the Instructions have not been issued and delivered to the Irrevocable Transfer Agent Instructions and the Warrant Share Instructions referred to in this Section 5.07 (or instructions that are consistent therewith) will be given by the Company by to its transfer agent in connection with this Agreement and that the Scheduled Standstill Expiration Date, Underlying Class A Common Stock shall otherwise be freely transferable on the books and records of the Company hereby agrees as and to the extent provided in this Agreement and the other Transaction Documents and applicable law. The Company acknowledges that a breach by it of the Company’s its obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be 5.07 will cause irreparable harm to a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer AgentPurchaser. Accordingly, the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable acknowledges that the parties endeavor to resolve any disagreement there may be as to the number of Pre-Installment Conversion Shares to be issued, no failure on the part of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions remedy at law for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do). Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach of the Company’s its obligations under this Agreement shall have occurredSection 5.07 will be inadequate and agrees, that such breach shall be an Event in the event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The by the Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this AgreementSection 5.07, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent that a Purchaser shall be delivered by the Holder entitled, in addition to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Noteall other available remedies, to pay an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the Event necessity of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of showing economic loss and without any bond or other security being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Companyrequired.

Irrevocable Transfer Agent Instructions. (a) The Company shall promptly issue irrevocable instructions to its transfer agent, and deliver any subsequent transfer agent to issue to the CompanyInvestors (or in such nominee’s transfer agent name(s) as designated by an Investor) book-entry notations representing the Shares set forth next to such Investor’s name on Exhibit A attached hereto (the “Irrevocable Transfer AgentAgent Instructions”) and, upon exercise of the Warrants pursuant to their terms, the Company shall issue irrevocable instructions in form to its transfer agent, and substance acceptable any subsequent transfer agent to issue to the Holder Investors (or in its sole discretion which shall instruct such nominee’s name(s) as designated by an Investor), book-entry notations representing the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) Warrant Shares (the “Warrant Share Instructions”). If The Company represents and warrants that no instruction other than the Instructions have not been issued and delivered to the Irrevocable Transfer Agent Instructions and the Warrant Share Instructions referred to in this Section 7.3 (or instructions that are consistent therewith) will be given by the Company by to its transfer agent in connection with this Agreement and that the Scheduled Standstill Expiration Date, Shares and the Warrant Shares shall otherwise be freely transferable on the books and records of the Company hereby agrees as and to the extent provided in this Agreement and the other Transaction Documents and applicable law. The Company acknowledges that a breach by it of the Company’s its obligations under this Agreement shall have occurred, that such breach shall be Section 7.3 will cause irreparable harm to an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer AgentInvestor. Accordingly, the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable acknowledges that the parties endeavor to resolve any disagreement there may be as to the number of Pre-Installment Conversion Shares to be issued, no failure on the part of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions remedy at law for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do). Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach of the Company’s its obligations under this Agreement shall have occurredSection 7.3 will be inadequate and agrees, that such breach shall be an Event in the event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The by the Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this AgreementSection 7.3, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent that an Investor shall be delivered by the Holder entitled, in addition to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Noteall other available remedies, to pay an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the Event necessity of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of showing economic loss and without any bond or other security being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Companyrequired.

Irrevocable Transfer Agent Instructions. (a) The On the Applicable Closing Date, the Company shall promptly issue irrevocable instructions to its Transfer Agent, and deliver any subsequent transfer agent to issue to the CompanyInvestors (or in such nominee’s transfer agent name(s) as designated by an Investor) book-entry notations representing the Shares to be issued on the Applicable Closing Date (the “Irrevocable Transfer AgentAgent Instructions”) and, upon exercise of the Pre-Funded Warrants pursuant to their terms, the Company shall issue irrevocable instructions in form to its transfer agent, and substance acceptable any subsequent transfer agent to issue to the Holder Investors (or in its sole discretion which shall instruct such nominee’s name(s) as designated by an Investor), book-entry notations representing the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) Pre-Funded Warrant Shares (the “Pre-Funded Warrant Share Instructions”). If The Company represents and warrants that no instruction other than the Instructions have not been issued and delivered to the Irrevocable Transfer Agent Instructions and the Pre-Funded Warrant Share Instructions referred to in this Section 8.3 (or instructions that are consistent therewith) will be given by the Company by to its transfer agent in connection with this Agreement and that the Scheduled Standstill Expiration Date, Shares and Pre-Funded Warrant Shares shall otherwise be freely transferable on the books and records of the Company hereby agrees as and to the extent provided in this Agreement and the other Transaction Documents and applicable law. The Company acknowledges that a breach by it of the Company’s its obligations under this Agreement shall have occurred, that such breach shall be Section 8.3 will cause irreparable harm to an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer AgentInvestor. Accordingly, the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable acknowledges that the parties endeavor to resolve any disagreement there may be as to the number of Pre-Installment Conversion Shares to be issued, no failure on the part of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions remedy at law for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do). Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach of the Company’s its obligations under this Agreement shall have occurredSection 8.3 will be inadequate and agrees, that such breach shall be an Event in the event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The by the Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this AgreementSection 8.3, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent that an Investor shall be delivered by the Holder entitled, in addition to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Noteall other available remedies, to pay an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the Event necessity of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of showing economic loss and without any bond or other security being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Companyrequired.

Irrevocable Transfer Agent Instructions. (a) The Company shall issue irrevocable instructions to its transfer agent and any subsequent transfer agent (as applicable, the “Transfer Agent”) in a form acceptable to each of the Holder (the “Irrevocable Transfer Agent Instructions”) to issue certificates or credit shares to the applicable balance accounts at The Depository Trust Company (“DTC”), registered in the name of the Holder or its respective nominee(s), for the New Conversion Shares in such amounts as specified from time to time by the Holder to the Company upon conversion of the New Note. The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section 7(b), and stop transfer instructions to give effect to Section 4(c) hereof, will be given by the Company to its transfer agent with respect to the New Securities, and that the New Securities, provided that all requirements of Rule 144 have been met, including a one year holding period (or a six month holding period if (x) the Holder is not then an “affiliate” of the Company (as defined in Rule 144) and (y) the Company is then in compliance with the conditions of Rule 144(i)(2)), shall otherwise be freely transferable on the books and records of the Company, as applicable, to the extent provided in this Exchange Agreement and the other Exchange Documents. If the Holder effects a sale, assignment or transfer of the New Securities in accordance with Section 4(c), the Company shall permit the transfer and shall promptly instruct its transfer agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and deliver in such denominations as specified by the Holder to effect such sale, transfer or assignment. In the event that such sale, assignment or transfer involves New Conversion Shares sold, assigned or transferred pursuant to an effective registration statement or in compliance with Rule 144, the transfer agent shall issue such shares to the Holder, assignee or transferee (as the case may be) without any restrictive legend in accordance with Section 7(d) below. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 7(b) will be inadequate and agrees, in the event of a breach or threatened breach by the Company of the provisions of this Section 7(b), that the Holder shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company shall cause its counsel to issue the legal opinion referred to in the Irrevocable Transfer Agent Instructions to the Company’s transfer agent (the “Transfer Agent”) irrevocable instructions in form and substance acceptable to the Holder in its sole discretion which shall instruct the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) (the “Instructions”). If the Instructions have not been issued and delivered to the Transfer Agent by the Company by the Scheduled Standstill Expiration Date, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer Agent, the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable that the parties endeavor to resolve any disagreement there may be as to the number of Pre-Installment Conversion Shares to be issued, no failure on the part of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do). Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: removal of any legends on any of the New Securities. Any fees (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver with respect to the Transfer Agent instructions for transfer agent, counsel to the delivery Company or otherwise) associated with the issuance of such opinion or the removal of any legends on any of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this Agreement, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent New Securities shall be delivered borne by the Holder to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Note, to pay the Event of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company.

Irrevocable Transfer Agent Instructions. (a) The Promptly following the Closing, the Company shall promptly issue and deliver irrevocable instructions to the Company’s its transfer agent in the form attached hereto as Appendix III (the “Transfer Agent”) irrevocable instructions in form and substance acceptable to the Holder in its sole discretion which shall instruct the Irrevocable Transfer Agent (without Instructions”), and any further actionsubsequent transfer agent, approval or instruction required by the Company) to issue certificates or transmit credit shares of the Company’s common stock to the Holder’s applicable balance account accounts at The Depository Trust Company at (“DTC”), registered in the Holder’s written request name of each Purchaser or its respective nominee(s), for the Conversion Shares in accordance with such amounts as specified from time to time by each Purchaser to the terms Company upon conversion of the Note after Shares. Promptly following the date hereof (includingeffectiveness of the Registration Statement, without limitationthe Company shall cause its transfer agent to receive a completed copy of the letter set forth as Exhibit II to such Appendix III. Prior to registration of the Conversion Shares under the Securities Act, upon all such certificates shall bear the occurrence of an Event of Default) (restrictive legend specified in Section 5.7. The Company warrants that no instruction other than the “Instructions”). If the Instructions have not been issued and delivered to the Irrevocable Transfer Agent Instructions referred to in this Section 7.7 and stop transfer instructions to give effect to Section 5.8 will be given by the Company by to its transfer agent and that the Scheduled Standstill Expiration Date, Shares and the Conversion Shares shall otherwise be freely transferable on the books and records of the Company hereby agrees as and acknowledges to the extent provided in this Agreement. If a Purchaser provides the Company with an opinion of counsel, in a generally acceptable form, to the effect that a breach public sale, assignment or transfer of the Company’s obligations Shares or the Conversion Shares may be made without registration under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once Securities Act or the Instructions have been delivered to the Transfer Agent, Purchaser provides the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable reasonable assurances that the parties endeavor Securities can be sold pursuant to resolve Rule 144 without any disagreement there may be restriction as to the number of Pre-Installment Conversion Shares to securities acquired as of a particular date that can then be issued, no failure on the part of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do). Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructionsimmediately sold, the Company agrees that if itshall permit the transfer, directly and, in the case of the Conversion Shares, promptly instruct its transfer agent to issue one or indirectly, instructs more certificates or directs credit shares to the Transfer that is inconsistent with the Instructions or takes applicable balance accounts at DTC in such name and in such denominations as specified by such Purchaser and without any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the restrictive legend. The Company hereby agrees and acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Purchaser by vitiating the intent and purpose of the Company’s transaction contemplated hereby. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Agreement shall have occurredSection 7.7 will be inadequate and agrees, that such breach shall be an Event in the event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The or threatened breach by the Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this AgreementSection 7.7, with regard to that the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent Purchasers shall be delivered by the Holder entitled, in addition to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Noteall other available remedies, to pay an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the Event necessity of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of showing economic loss and without any bond or other security being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Companyrequired.

Irrevocable Transfer Agent Instructions. (a) The At the Execution Closing, the Company shall promptly issue and deliver irrevocable instructions to the Company’s transfer agent Transfer Agent in the form attached hereto as Exhibit C (the “Transfer Agent”) irrevocable instructions in form and substance acceptable to the Holder in its sole discretion which shall instruct the Irrevocable Transfer Agent (without any further action, approval or instruction required by the CompanyInstructions”) to issue certificates or transmit credit shares to the applicable balance accounts at DTC, registered in the name of Investor or its respective nominee(s), for the Securities in such amounts as specified from time to time by Investor to the Company upon delivery of the Company’s common stock to Common Shares or Preferred Shares or the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms exercise of the Note after Warrant (as the date hereof (including, without limitation, upon the occurrence of an Event of Default) (the “Instructions”case may be). If The Company represents and warrants that no instruction other than the Instructions have not been issued and delivered to the Irrevocable Transfer Agent Instructions referred to in this Section 5.1(b) will be given by the Company by the Scheduled Standstill Expiration Date, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer Agent, the Company no longer shall be obligated or entitled to deliver share issuance instructions to the Transfer Agent with regard respect to any Installment Notice Due Date or upon the occurrence Securities, and that the Securities shall otherwise be freely transferable on the books and records of an Event of Default. It is the Company’s intention to continue to provide , as applicable, to the Holderextent provided in this Agreement and the other Transaction Documents. If Investor effects an offer, sale, transfer, assignment, pledge or distribution of the Securities in accordance with Section 5.1(a), the Company shall permit the transfer and shall promptly instruct the Transfer Agent to issue one or more certificates or credit shares to the applicable balance accounts at DTC in such name and in such denominations as specified by Investor to effect such sale, transfer or assignment. In the event that such offer, sale, transfer, assignment, pledge or distribution involves Common Shares offered, sold, transferred, assigned, pledged or distributed pursuant to an effective registration statement or in compliance with Rule 144 or in accordance with paragraph (a)(ii) above, the Transfer Agent shall issue such shares to Investor, assignee or transferee (as the case may be) without any restrictive legend in accordance with Section 5.1(d) below. The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to Investor. Accordingly, the Company acknowledges that the remedy at law for a breach of its obligations under this Section 5.1(b) will be inadequate and agrees, in advance the event of each Installment Notice Due Date, a calculation breach or threatened breach by the Company of the number provisions of Pre-Installment Conversion Shares this Section 5.1(b), that Investor shall be entitled, in addition to all other available remedies, to an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the necessity of showing economic loss and without any bond or other security being required. The Company believes, acting shall cause its counsel to issue the legal opinion referred to in good faith, should be issued on such Installment Notice Due Date and in respect of which the Holder is expected to deliver Irrevocable Transfer Agent Instructions to the Transfer Agent delivery instructions. Though it is desirable that the parties endeavor to resolve any disagreement there may be as to the number of Pre-Installment Conversion Shares to be issued, no failure on the part effective date of the Company to provide to the Holder its calculation of the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do)Registration Statement. Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. fees (c) Following the issuance of the Instructions, the Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (d) The Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effectivetransfer agent, the Holder is entitled to deliver counsel to the Transfer Agent instructions for Company or otherwise) associated with the delivery issuance of such opinion or the removal of any legends on any of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this Agreement, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent Securities shall be delivered borne by the Holder to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Note, to pay the Event of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company.

Irrevocable Transfer Agent Instructions. (a) The Company shall promptly issue and deliver to the Company’s transfer agent (the “Transfer Agent”) irrevocable instructions in form and substance acceptable to the Holder in its sole discretion which shall instruct the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) (the “Instructions”). If the Instructions have not been issued and delivered to the Transfer Agent by the Company by the Scheduled Standstill Expiration Date, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer Agent, and any subsequent transfer agent to issue to the Purchasers (or in such nominee’s name(s) as designated by a Purchaser) book-entry notations representing a number of Shares equal to the amount set forth under “Subscription Amount Applicable to Shares” on such Purchaser’s signature page of this Agreement, divided by the Per Share Purchase Price, registered in the name of such Purchaser (“Irrevocable Transfer Agent Instructions”). The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section ‎4.11 (or instructions that are consistent therewith) will be given by the Company no longer shall be obligated or entitled to deliver share issuance instructions to the its Transfer Agent in connection with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date this Agreement and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable that the parties endeavor to resolve any disagreement there may Shares shall otherwise be as to the number of Pre-Installment Conversion Shares to be issued, no failure freely transferable on the part books and records of the Company to provide as and to the Holder its calculation of extent provided in this Agreement and the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued other Transaction Documents and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do)applicable law. Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the The Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach by it of the Company’s its obligations under this Agreement shall have occurredSection ‎4.11 will cause irreparable harm to a Purchaser. Accordingly, the Company acknowledges that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be remedy at law for a breach which is not curable. (d) The of its obligations under this Section ‎4.11 will be inadequate and agrees, in the event of a breach by the Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this AgreementSection ‎4.11, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent that a Purchaser shall be delivered by the Holder entitled, in addition to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Noteall other available remedies, to pay an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the Event necessity of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of showing economic loss and without any bond or other security being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Companyrequired.

Irrevocable Transfer Agent Instructions. (a) The Company shall promptly issue and deliver to the Company’s transfer agent (the “Transfer Agent”) irrevocable instructions in form and substance acceptable to the Holder in its sole discretion which shall instruct the Transfer Agent (without any further action, approval or instruction required by the Company) to issue certificates or transmit shares of the Company’s common stock to the Holder’s balance account at The Depository Trust Company at the Holder’s written request in accordance with the terms of the Note after the date hereof (including, without limitation, upon the occurrence of an Event of Default) (the “Instructions”). If the Instructions have not been issued and delivered to the Transfer Agent by the Company by the Scheduled Standstill Expiration Date, the Company hereby agrees and acknowledges that a breach of the Company’s obligations under this Agreement shall have occurred, that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be a breach which is not curable. (b) Once the Instructions have been delivered to the Transfer Agent, and any subsequent transfer agent to issue to the Purchasers (or in such nominee’s name(s) as designated by a Purchaser) book-entry notations representing a number of Shares equal to the amount set forth under “Subscription Amount Applicable to Shares” on such Purchaser’s signature page of this Agreement, divided by the Share Unit Purchase Price, registered in the name of such Purchaser and the Warrant Shares once the Warrants are exercised (“Irrevocable Transfer Agent Instructions”). The Company represents and warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in this Section ‎4.11 (or instructions that are consistent therewith) will be given by the Company no longer shall be obligated or entitled to deliver share issuance instructions to the its Transfer Agent in connection with regard to any Installment Notice Due Date or upon the occurrence of an Event of Default. It is the Company’s intention to continue to provide to the Holder, in advance of each Installment Notice Due Date, a calculation of the number of Pre-Installment Conversion Shares the Company believes, acting in good faith, should be issued on such Installment Notice Due Date this Agreement and in respect of which the Holder is expected to deliver to the Transfer Agent delivery instructions. Though it is desirable that the parties endeavor to resolve any disagreement there may Shares and the Warrant Shares shall otherwise be as to the number of Pre-Installment Conversion Shares to be issued, no failure freely transferable on the part books and records of the Company to provide as and to the Holder its calculation of extent provided in this Agreement and the number of Conversion Shares or any disagreement shall preclude the Holder from delivering to the Transfer Agent delivery instructions for the number of Pre-Installment Conversion Shares the Holder believes, in good faith, should be issued other Transaction Documents and delivered to the Holder (which the Instructions shall expressly provide the Holder is entitled and authorized to do)applicable law. Any error in the calculation of Pre-Installment Conversion Shares or Conversion Shares delivered on any Installment Date shall be corrected by the parties reasonably promptly after discovery. (c) Following the issuance of the Instructions, the The Company agrees that if it, directly or indirectly, instructs or directs to the Transfer that is inconsistent with the Instructions or takes any action, or permits any action to be taken, which interferes with the Transfer Agent acting in accordance with the Instructions, the Company hereby agrees and acknowledges that a breach by it of the Company’s its obligations under this Agreement shall have occurredSection ‎4.11 will cause irreparable harm to a Purchaser. Accordingly, the Company acknowledges that such breach shall be an Event of Default under Section 4(a)(xiv) of the Note and that such breach shall be remedy at law for a breach which is not curable. (d) The of its obligations under this Section ‎4.11 will be inadequate and agrees, in the event of a breach by the Company and the Holder hereby agree to the following with respect to the Irrevocable Transfer Agent Instructions: (i) At any time on or after the Instructions are effective, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the Pre-Installment Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(a) of Note (or this AgreementSection ‎4.11, with regard to the April 1, 2009 Installment Date). A copy of such instructions to the Transfer Agent that a Purchaser shall be delivered by the Holder entitled, in addition to the Company. (ii) At any time on or after each Installment Date after the date hereof, the Holder is entitled to deliver to the Transfer Agent instructions for the delivery of the number of Conversion Shares required to be delivered to the Holder pursuant to the provisions of paragraph 8(b) of the Note. A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Company. (iii) Upon the occurrence of an Event of Default and the delivery after the date hereof of an Event of Default Redemption Notice by the Holder in accordance with Section 4(b) of the Note, the Holder shall be entitled to deliver to the Transfer Agent instructions for the delivery the number of shares of the Company’s common stock as shall be required, valued in accordance with the applicable provisions of the Noteall other available remedies, to pay an order and/or injunction restraining any breach and requiring immediate issuance and transfer, without the Event necessity of Default Redemption Price due to the Holder if the Event of Default specified in such Event of Default Redemption Notice is not cured by the Company within three (3) Business Days following the Company’s receipt thereof (but such three (3) Business Day period shall not apply if such Event of Default is not capable of showing economic loss and without any bond or other security being cured). A copy of such instructions to the Transfer Agent shall be delivered by the Holder to the Companyrequired.