Concerning the Shares. The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless # such shares are sold pursuant to an effective registration statement under the Securities Act of 1933, as amended (the “Act”) or # the Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or # such shares are sold or transferred pursuant to Rule 144 under the Act (or a successor rule) (“Rule 144”) or # such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 2.4. Until such time as the shares of Common Stock issuable upon conversion of this Note have been registered under the Act or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:

Purchaser has not been furnished any offering materials.

The Shares. The issuance of the Shares by the Issuer pursuant to this Agreement has been duly authorized and the Shares, upon issuance in accordance with the terms of this Agreement, will be validly issued, fully paid and non-assessable. The execution of this Agreement and the issuance of the Shares will not give rise to any preemptive rights, rights of first refusal or other similar rights on behalf of any person.

The Shares. The Shares to be issued and sold by the Company hereunder, when issued and delivered and paid for as provided herein, will be duly authorized and validly issued, will be fully paid and nonassessable and will conform in all material respects to the descriptions thereof in the Registration Statement, the Prospectus and the Time of Sale Information; and the issuance of the Shares is not subject to any preemptive or similar rights that have not been duly waived or satisfied.

Concerning the Shares. The Conversion Shares issuable upon conversion of this Note may not be sold or transferred unless # such shares are sold pursuant to an effective registration statement under the 1933 Act or # the Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be the Legal Counsel Opinion (as defined in the Purchase Agreement)) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration or # such shares are sold or transferred pursuant to Rule 144, Rule 144A, Regulation S, or other applicable exemption, or # such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 1.5 and who is an Accredited Investor (as defined in the Purchase Agreement). Except as otherwise provided in the Purchase Agreement (and subject to the removal provisions set forth below), until such time as the Conversion Shares have been registered under the 1933 Act or otherwise may be sold pursuant to Rule 144, Rule 144A, Regulation S, or other applicable exemption without any restriction as to the number of securities as of a particular date that can then be immediately sold, each certificate for the Conversion Shares that has not been so included in an effective registration statement or that has not been sold pursuant to an effective registration statement or an exemption that permits removal of the legend, shall bear a legend substantially in the following form, as appropriate:

Concerning the Shares. The shares of Common Stock issuable upon conversion of this Note may not be sold or transferred unless: # such shares are sold pursuant to an effective registration statement under the Act or # the Borrower or its transfer agent shall have been furnished with an opinion of counsel (which opinion shall be in form, substance and scope customary for opinions of counsel in comparable transactions) to the effect that the shares to be sold or transferred may be sold or transferred pursuant to an exemption from such registration (such as Rule 144 or a successor rule) (“Rule 144”); or # such shares are transferred to an “affiliate” (as defined in Rule 144) of the Borrower who agrees to sell or otherwise transfer the shares only in accordance with this Section 1.5 and who is an Accredited Investor (as defined in the Purchase Agreement).

Concerning the Indenture Trustee. The Indenture Trustee shall be afforded the same rights, protections, immunities and indemnities set forth in the Indenture as if the same were specifically set forth herein.

Escrowee shall be protected in relying upon the accuracy, acting in reliance upon the contents, and assuming the genuineness of any notice, demand, certificate, signature, instrument, or other document which is given to Escrowee without verifying the truth or accuracy of any such notice, demand, certificate, signature, instrument, or other document, so long as Escrowee does not have a reasonable basis to question the truth or accuracy of any such notice, demand, certificate, signature, instrument, or other document.

The Shares. The Shares to be issued and sold by the Company to or through Cowen pursuant to this Agreement and any Terms Agreement have been duly and validly authorized and, when issued and delivered against payment therefor as provided herein, will be duly and validly issued, fully paid and non-assessable and will conform to the descriptions thereof in the Registration Statement and the Prospectus; and the issuance of the Shares is not subject to any preemptive or similar rights, except as described herein or in the Registration Statement or the Prospectus.

Concerning the Collateral Trustee. Notwithstanding anything contained herein to the contrary, it is expressly understood and agreed by the parties hereto that this Agreement has been signed by U.S. Bank National Association, not in its individual capacity or personally but solely in its capacity as the Collateral Trustee, in the exercise of the powers and authority conferred and vested in it under the Indenture and the Collateral Trust Agreement. In entering into this Agreement, the Collateral Trustee shall be entitled to the benefit of every provision of the Indenture, the Collateral Trust Agreement and any Security Document relating to the rights, exculpations or conduct of, affecting the liability of or otherwise affording protection to, the “Collateral Trustee” thereunder.