exv10w4



 







Exhibit 10.4




NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE
SECURITIES INTO WHICH THESE SECURITIES ARE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION IN A
GENERALLY ACCEPTABLE FORM OF COUNSEL, WHICH COUNSEL SHALL BE SELECTED BY THE HOLDER AND BE
REASONABLY ACCEPTABLE TO THE ISSUER, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II)
UNLESS SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING
ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE
TERMS OF THIS NOTE, INCLUDING SECTIONS 3(c)(iv) AND 18(a) HEREOF. THE PRINCIPAL AMOUNT REPRESENTED
BY THIS NOTE AND, ACCORDINGLY, THE SECURITIES ISSUABLE UPON CONVERSION HEREOF MAY BE LESS THAN THE
AMOUNTS SET FORTH ON THE FACE HEREOF PURSUANT TO SECTION 3(c)(iv) OF THIS NOTE. THIS INSTRUMENT IS
SUBJECT TO THE TERMS OF A SUBORDINATION AGREEMENT BY THE HOLDER OF THIS NOTE IN FAVOR OF WELLS
FARGO BANK, NATIONAL ASSOCIATION, ACTING THROUGH ITS WELLS FARGO BUSINESS CREDIT OPERATING
DIVISION, DATED AS OF MARCH 31, 2006.



GLOBAL EMPLOYMENT HOLDINGS, INC.




Senior Secured Convertible Note




	 	 	 
	Issuance Date: March 31, 2006
	 	Principal: U.S. $






          FOR VALUE RECEIVED, Global Employment Holdings, Inc., a Delaware corporation (the “Company”),
hereby promises to pay to [NAME OF BUYER] or registered assigns (“Holder”) the amount set out above
as the Principal (as reduced pursuant to the terms hereof pursuant to redemption, conversion or
otherwise, the “Principal”) when due, whether upon the Maturity Date (as defined below),
acceleration, redemption or otherwise (in each case in accordance with the terms hereof) and to pay
interest (“Interest”) on any outstanding Principal at the rate of 8.00% per annum (the “Interest
Rate”), from the date set out above as the Issuance Date (the “Issuance Date”) until the same
becomes due and payable, whether upon an Interest Date (as defined below), the Maturity Date,
acceleration, conversion, redemption or otherwise (in each case, in accordance with the terms
hereof). This Senior Secured Convertible Note (including all Senior Secured Convertible Notes
issued in exchange, transfer or replacement hereof, this “Note”) is one of an issue of Senior
Secured Convertible Notes issued pursuant to the Securities Purchase Agreement (as defined below)
on the Closing Date




 









 








(collectively, the “Notes” and such other Senior Secured Convertible Notes, the “Other
Notes”). Certain capitalized terms used herein are defined in Section 27. Capitalized terms not
otherwise defined herein have the meanings set forth in the Securities Purchase Agreement.



          (1) MATURITY. On the Maturity Date, the Holder shall surrender the Note to the
Company and the Company shall pay to the Holder an amount in cash representing all outstanding
Principal, accrued and unpaid Interest and accrued and unpaid Late Charges, if any. The “Maturity
Date” shall be March 31, 2011, as may be extended at the option of the Holder (i) in the event
that, and for so long as, an Event of Default (as defined in Section 4(a)) shall have occurred and
be continuing or any event shall have occurred and be continuing which with the passage of time and
the failure to cure would result in an Event of Default and (ii) through the date that is 10 days
after the consummation of a Change of Control in the event that a Change of Control is publicly
announced or a Change of Control Notice (as defined in Section 5(b)) is delivered prior to the
Maturity Date. Except as specifically set forth in Section 8 hereof, this Note is not prepayable.




          (2) INTEREST; INTEREST RATE. Interest on this Note shall commence accruing on the
Issuance Date and shall be computed on the basis of a 360-day year comprised of twelve 30-day
months and shall be payable in arrears on the first day of each January, April, July and October
during the period beginning on the Issuance Date and ending on, and including, the Maturity Date
(each, an “Interest Date”) with the first Interest Date being April 1, 2006. Interest shall be
payable on each Interest Date in cash. Prior to the payment of Interest on an Interest Date,
Interest on this Note shall accrue at the Interest Rate. From and after the occurrence of an Event
of Default, the Interest Rate shall be increased to 12.0% (the “Default Rate”). In the event that
such Event of Default is subsequently cured, the adjustment referred to in the preceding sentence
shall cease to be effective as of the date of such cure; provided that the Interest as calculated
at such increased rate during the continuance of such Event of Default shall continue to apply to
the extent relating to the days after the occurrence of such Event of Default through and including
the date of cure of such Event of Default.




          (3) CONVERSION OF NOTES. This Note shall be convertible into shares of the Company’s
common stock, par value $.0001 per share (the “Common Stock”), on the terms and conditions set
forth in this Section 3.




               (a) Conversion Right. Subject to the provisions of Section 3(d), at any time or times
on or after the Issuance Date, the Holder shall be entitled to convert any portion of the
outstanding and unpaid Conversion Amount (as defined below) into fully paid and nonassessable
shares of Common Stock in accordance with Section 3(c), at the Conversion Rate (as defined below).
The Company shall not issue any fraction of a share of Common Stock upon any conversion. If the
issuance would result in the issuance of a fraction of a share of Common Stock, the Company shall
round such fraction of a share of Common Stock up to the nearest whole share. The Company shall
pay any and all taxes that may be payable with respect to the issuance and delivery of Common Stock
upon conversion of any Conversion Amount.



               (b) Conversion Rate. The number of shares of Common Stock issuable upon conversion of
any Conversion Amount pursuant to Section 3(a) shall be



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determined by dividing (x) such Conversion Amount by (y) the Conversion Price (such number of
shares, the “Conversion Rate”). For the purposes of this Note:




                              (i) “Conversion Amount” means the sum of (A) the portion of the Principal to be
converted, redeemed or otherwise with respect to which this determination is being made, (B)
accrued and unpaid Interest with respect to such Principal and (C) accrued and unpaid Late
Charges with respect to such Principal and Interest.




                              (ii) “Conversion Price” means, as of any Conversion Date (as defined below) or other
date of determination a price equal to $6.25, subject to adjustment as provided herein.



                    (c) Mechanics of Conversion.




                              (i) Optional Conversion. To convert any Conversion Amount into shares of
Common Stock on any date (a “Conversion Date”), the Holder shall (A) transmit by facsimile
(or otherwise deliver), for receipt on or prior to 11:59 p.m., New York Time, on such date,
a copy of an executed notice of conversion in the form attached hereto as Exhibit I
(the “Conversion Notice”) to the Company and (B) if required by Section 3(c)(iv), surrender
this Note to a common carrier for delivery to the Company as soon as practicable on or
following such date (or an indemnification undertaking with respect to this Note in the case
of its loss, theft or destruction). On or before the first Business Day following the date
of receipt of a Conversion Notice, the Company shall transmit by facsimile a confirmation of
receipt of such Conversion Notice to the Holder and the Company’s transfer agent (the
“Transfer Agent”). On or before the second Business Day following the date of receipt of a
Conversion Notice (the “Share Delivery Date”), the Company shall (1) (X) provided that the
Transfer Agent is participating in the Depository Trust Company (“DTC”) Fast Automated
Securities Transfer Program and so long as the certificates therefor are not required to
bear a legend pursuant to Section 2(g) of the Securities Purchase Agreement, credit such
aggregate number of shares of Common Stock to which the Holder shall be entitled to the
Holder’s or its designee’s balance account with DTC through its Deposit Withdrawal Agent
Commission system or (Y) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and deliver to the address as specified in the
Conversion Notice, a certificate, registered in the name of the Holder or its designee, for
the number of shares of Common Stock to which the Holder shall be entitled, which
certificate shall not bear any restrictive legend so long as the certificate is not required
to bear such a legend pursuant to Section 2(g) of the Securities Purchase Agreement and (2)
for conversions following (x) the first anniversary of the Issuance Date or (y) the delivery
of an Optional Redemption Notice, pay any applicable Make-Whole Amount in accordance with
Section 3(c)(ii) or Section 8, as applicable. If this Note is physically surrendered for
conversion as required by Section 3(c)(iv) and the outstanding Principal of this Note is
greater than the Conversion Amount, then the Company shall as soon as practicable and in no
event later than three Business Days after receipt of this Note and at its own expense,
issue and deliver to the holder a new Note (in accordance with Section 18(d)) representing
the outstanding Principal not converted. The Person or Persons



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entitled to receive the shares of Common Stock issuable upon a conversion of this Note
shall be treated for all purposes as the record holder or holders of such shares of Common
Stock on the Conversion Date or the delivery of an Optional Redemption Notice.




                              (ii) Make-Whole Amount. If during the period commencing on the first
anniversary of the Issuance Date and ending on the third anniversary of the Issuance Date,
the Holder converts all or any portion of this Note pursuant to Section 3(c)(i) and the
Closing Sale Price of the Common Stock is less than 200% of the Conversion Price then in
effect for each of 20 Trading Days out of the 30 consecutive Trading Day period ended on the
Trading Day immediately prior to the applicable Conversion Date, then upon such conversion,
the Holder shall receive the Make-Whole Amount. The Company shall pay the Make-Whole Amount
in shares of Common Stock or, at the Company’s option, in cash. Prior to the first
anniversary of the Issuance Date, the Company shall deliver a notice (a “Make-Whole Election
Notice”) to the Holder (x) specifying whether the Make-Whole Amount shall be paid in cash
instead of shares of Common Stock and (y) certifying that there has been no Equity
Conditions Failure; provided, however, that the Company may, at any time, upon 10 Trading
Days prior written notice, change its election of the form in which the Company shall pay
the Make-Whole Amount. Any Make-Whole Amount to be paid in shares of Common Stock shall be
paid in a number of fully paid and nonassessable shares of Common Stock equal to the
quotient of (A) the Make-Whole Amount and (B) the Make-Whole Conversion Price. If the
Make-Whole Amount shall be paid in shares of Common Stock on the applicable Share Delivery
Date, the Company shall (I) provided the Transfer Agent is participating in the DTC Fast
Automated Securities Transfer Program and so long as the certificates therefor are not
required to bear a legend pursuant to Section 2(g) of the Securities Purchase Agreement,
credit such aggregate number of shares of Common Stock to which the Holder shall be entitled
to the Holder or its designee’s balance account with DTC through its Deposit Withdrawal
Agent Commission system, or (II) if the Transfer Agent is not participating in the DTC Fast
Automated Securities Transfer Program, issue and deliver to the address as specified in the
Conversion Notice or in the register maintained by the Company for such purpose pursuant to
the Securities Purchase Agreement, a certificate, registered in the name of the Holder or
its designee, for the number of shares of Common Stock to which the Holder shall be
entitled, which certificate shall not bear any restrictive legend so long as the certificate
is not required to bear such a legend pursuant to Section 2(g) of the Securities Purchase
Agreement. If the Make-Whole Amount shall be paid in cash, then the Company shall make such
payment on the applicable Share Delivery Date by wire transfer of immediately available
funds to an account designated in writing by the Holder. Notwithstanding the foregoing the
Company shall not be entitled to pay the Make-Whole Amount in Common Stock and shall be
required to pay such Make-Whole Amount in cash on the applicable Share Delivery Date, if,
unless consented to in writing by the Holder, on any Trading Day during the period
commencing on the applicable Conversion Date through the applicable Share Delivery Date, the
Equity Conditions have not been satisfied.




                              (iii) Company’s Failure to Timely Convert. If the Company shall fail to issue
a certificate to the Holder or credit the Holder’s balance account with DTC for the number
of shares of Common Stock to which the Holder is



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entitled upon conversion of any Conversion Amount on or prior to the date which is
three Business Days after the Conversion Date (a “Conversion Failure”), then the Company
shall pay to the Holder payments (“Conversion Default Payments”) for a Conversion Failure in
the amount of (i) (N/365), multiplied by (ii) the amount that the highest Closing Sale Price
of the Common Stock during the period beginning on the date the Conversion Notice giving
rise to the Conversion Failure is transmitted in accordance with this Section 3(c)(iii) (the
“Conversion Failure Date”) and ending on the date immediately preceding the date of the
applicable Conversion Default Payment exceeds the Conversion Price in respect of such
Conversion Amount, multiplied by (iii) the number of shares of Common Stock the Company
failed to so deliver in such Conversion Failure, multiplied by (iv) .18, where N equals the
number of days from the Conversion Failure Date to the date that the Company effects the
full conversion of the Conversion Amount which gave rise to the Conversion Failure. The
accrued Conversion Default Payments for each calendar month shall be paid in cash to the
Holder by the fifth day of the month following the month in which it has accrued. In
addition to the foregoing, if within three Trading Days after the Company’s receipt of the
facsimile copy of a Conversion Notice the Company shall fail to issue and deliver a
certificate to the Holder or credit the Holder’s balance account with DTC for the number of shares of Common Stock to which the Holder is entitled upon such holder’s conversion of any
Conversion Amount, and if on or after such Trading Day the Holder purchases (in an open
market transaction or otherwise) Common Stock to deliver in satisfaction of a sale by the
Holder of Common Stock issuable upon such conversion that the Holder anticipated receiving
from the Company (a “Buy-In”), then the Company shall, within three Business Days after the
Holder’s request and in the Holder’s discretion, either (i) pay cash to the Holder in an
amount equal to the Holder’s total purchase price (including brokerage commissions and other
out-of-pocket expenses, if any) for the shares of Common Stock so purchased (the “Buy-In
Price”), at which point the Company’s obligation to deliver such certificate (and to issue
such Common Stock) shall terminate, or (ii) promptly honor its obligation to deliver to the
Holder a certificate or certificates representing such Common Stock and pay cash to the
Holder in an amount equal to the excess (if any) of the Buy-In Price over the product of (A)
such number of shares of Common Stock times (B) the Closing Bid Price on the Conversion
Date. Nothing herein shall limit the Holder’s right to pursue actual damages for the
Company’s failure to maintain a sufficient number of authorized shares of Common Stock or to
otherwise issue shares of Common Stock upon conversion of this Note in accordance with the
terms hereof, and the Holder shall have the right to pursue all remedies available at law or
in equity (including a decree of specific performance and/or injunctive relief).




                              (iv) Book-Entry. Notwithstanding anything to the contrary set forth herein,
upon conversion of any portion of this Note in accordance with the terms hereof, the Holder
shall not be required to physically surrender this Note to the Company unless (A) the full
Principal amount of this Note is being converted or (B) the Holder has provided the Company
with prior written notice (which notice may be included in a Conversion Notice) requesting
physical surrender and reissue of this Note. The Holder and the Company shall maintain
records showing the Principal, converted and the dates of such conversions (and the Interest
and Late Charges paid with respect



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thereto) or shall use such other method, reasonably satisfactory to the Holder and the
Company, so as not to require physical surrender of this Note upon conversion.




                              (v) Pro Rata Conversion; Disputes. In the event that the Company receives a
Conversion Notice from more than one holder of Notes for the same Conversion Date and the
Company can convert some, but not all, of such portions of the Notes submitted for
conversion, the Company, subject to Section 3(d), shall convert from each holder of Notes
electing to have Notes converted on such date a pro rata amount of such holder’s portion of
its Notes submitted for conversion based on the principal amount of Notes submitted for
conversion on such date by such holder relative to the aggregate principal amount of all
Notes submitted for conversion on such date. In the event of a dispute as to the number of shares of Common Stock issuable to the Holder in connection with a conversion of this Note,
the Company shall issue to the Holder the number of shares of Common Stock not in dispute
and resolve such dispute in accordance with Section 23.



                    (d) Limitations on Conversions; Beneficial Ownership. The Company shall not
effect any conversion of this Note, and the Holder of this Note shall not have the right to convert
any portion of this Note pursuant to Section 3(a), to the extent that after giving effect to such
conversion, the Holder (together with the Holder’s affiliates) would beneficially own in excess of
4.99% (the “Maximum Percentage”) of the number of shares of Common Stock outstanding immediately
after giving effect to such conversion. For purposes of the foregoing sentence, the number of
shares of Common Stock beneficially owned by the Holder and its affiliates shall include the number
of shares of Common Stock issuable upon conversion of this Note with respect to which the
determination of such sentence is being made, but shall exclude the number of shares of Common
Stock which would be issuable upon (A) conversion of the remaining, unconverted portion of this
Note beneficially owned by the Holder or any of its affiliates and (B) exercise or conversion of
the unexercised or unconverted portion of any other securities of the Company (including, without
limitation, any Other Notes or warrants) subject to a limitation on conversion or exercise
analogous to the limitation contained herein beneficially owned by the Holder or any of its
affiliates. Except as set forth in the preceding sentence, for purposes of this Section 3(d)(i),
beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities
Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of this Section 3(d)(i), in
determining the number of outstanding shares of Common Stock, the Holder may rely on the number of
outstanding shares of Common Stock as reflected in (x) the Company’s most recent Form 10-K, Form
10-Q or Form 8-K, as the case may be, (y) a more recent public announcement by the Company or (z)
any other notice by the Company or the Transfer Agent setting forth the number of shares of Common
Stock outstanding. For any reason at any time, upon the written or oral request of the Holder, the
Company shall within one Trading Day confirm orally and in writing to the Holder the number of
shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common
Stock shall be determined after giving effect to the conversion or exercise of securities of the
Company, including this Note, by the Holder or its affiliates since the date as of which such
number of outstanding shares of Common Stock was reported. By written notice to the Company, the
Holder may from time to time increase or decrease the Maximum Percentage to any other percentage
not in excess of 9.99% specified in such notice; provided that (i) any such increase will not be
effective until the 61st day after such notice is delivered to the Company, and (ii) any



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such increase or decrease will apply only to the Holder and not to any other holder of Notes.
Notwithstanding anything to the contrary set forth herein the provisions of this Section 3(d) shall
not be implemented in strict conformity with the terms of this Section 3(d) if necessary to correct
any portion of this Section 3(d) which may be defective or inconsistent with the intended
beneficial ownership limitation herein contained or to make changes or supplements necessary or
desirable to properly give effect to such limitation. The limitations contained in this Section
3(d) shall apply to a successor Holder of this Warrant.



          (4) RIGHTS UPON EVENT OF DEFAULT.




                    (a) Event of Default. Each of the following events shall constitute an “Event of
Default”:




                              (i) the failure of the applicable Registration Statement required to be filed pursuant
to the Registration Rights Agreement to be declared effective by the SEC on or prior to the
date that is 60 days after the applicable Effectiveness Deadline (as defined in the
Registration Rights Agreement), or, while the applicable Registration Statement is required
to be maintained effective pursuant to the terms of the Registration Rights Agreement, the
effectiveness of the applicable Registration Statement lapses for any reason (including,
without limitation, the issuance of a stop order) or is unavailable to any holder of the
Notes for sale of all of such holder’s Registrable Securities (as defined in the
Registration Rights Agreement) in accordance with the terms of the Registration Rights
Agreement, and such lapse or unavailability continues for a period of 10 consecutive days or
for more than an aggregate of 30 days in any 365-day period (other than days during an
Allowable Grace Period (as defined in the Registration Rights Agreement)); 




                              (ii) the suspension from trading or failure of the Common Stock to be listed on an
Eligible Market for a period of five consecutive days or for more than an aggregate of 10
days in any 365-day period;




                              (iii) the Company’s (A) failure to cure a Conversion Failure by delivery of the
required number of shares of Common Stock within 5 Trading Days after the applicable
Conversion Date or (B) notice, written or oral, to any holder of the Notes, including by way
of public announcement or through any of its agents, at any time, of its intention not to
comply with a request for conversion of any Notes into shares of Common Stock that is
tendered in accordance with the provisions of the Notes;




                              (iv) the Holder’s Authorized Share Allocation is less than the number of shares of
Common Stock that the Holder would be entitled to receive upon a conversion of the full
Conversion Amount of this Note (without regard to any limitations on conversion set forth in
Section 3(d) or otherwise) for 10 consecutive Business Days;




                              (v) the Company’s failure to pay to the Holder any amount of Principal, Interest, Late
Charges or other amounts when and as due under this Note (including, without limitation, the
Company’s failure to pay any redemption or



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make-whole payments, premiums or other amounts hereunder) or any other Transaction
Document (as defined in the Securities Purchase Agreement) except, in the case of a failure
to pay Interest and Late Charges when and as due, in which case only if such failure
continues for a period of at least five Trading Days;




                              (vi) either (i) fail to pay, when due, or within any applicable grace period, any
payment with respect to any Indebtedness in excess of $100,000 due to any third party, other
than, with respect to unsecured Indebtedness only, payments contested by the Company in good
faith by proper proceedings and with respect to which adequate reserves have been set aside
for the payment thereof in accordance with GAAP, or otherwise be in breach or violation of
any agreement for monies owed or owing in an amount in excess of $100,000, which breach or
violation permits the other party thereto to declare a default or otherwise accelerate
amounts due thereunder, or (ii) suffer to exist any other circumstance or event that would,
with or without the passage of time or the giving of notice, result in a default or event of
default under any agreement binding the Company, which default or event of default would or
is likely to have a material adverse effect on the business, operations, properties,
prospects or financial condition of the Company or any of its Subsidiaries, individually or
in the aggregate;




                              (vii) the Company or any of its Subsidiaries, pursuant to or within the meaning of
Title 11, U.S. Code, or any similar Federal, foreign or state law for the relief of debtors
(collectively, “Bankruptcy Law”), (A) commences a voluntary case, (B) consents to the entry
of an order for relief against it in an involuntary case, (C) consents to the appointment of
a receiver, trustee, assignee, liquidator or similar official (a “Custodian”), (D) makes a
general assignment for the benefit of its creditors or (E) admits in writing that it is
generally unable to pay its debts as they become due;




                              (viii) a court of competent jurisdiction enters an order or decree under any Bankruptcy
Law that (A) is for relief against the Company or any of its Subsidiaries in an involuntary
case, (B) appoints a Custodian of the Company or any of its Subsidiaries or (C) orders the
liquidation of the Company or any of its Subsidiaries;




                              (ix) bankruptcy, insolvency, reorganization or liquidation proceedings or other
proceedings for the relief of debtors shall be instituted by or against the Company or any
subsidiary of the Company and, if instituted against the Company or any subsidiary of the
Company by a third party, shall not be dismissed within 60 days of their initiation;




                              (x) a final judgment or judgments for the payment of money aggregating in excess of
$500,000 are rendered against the Company or any of its Subsidiaries, which judgments are
not, within 60 days after the entry thereof, bonded, discharged or stayed pending appeal, or
are not discharged within 60 days after the expiration of such stay; provided, however, that
any judgment which is covered by insurance or an indemnity from a credit worthy party shall
not be included in calculating the $500,000 amount set forth above so long as the Company
provides the Holder a written statement from such insurer or indemnity provider (which
written statement shall



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be reasonably satisfactory to the Holder) to the effect that such judgment is covered
by insurance or an indemnity and the Company will receive the proceeds of such insurance or
indemnity within 30 days of the issuance of such judgment;




                              (xi) the Company’s certified public accountants or auditors issue any opinion, or
include any qualification or exception in any review or audit letter or report, as to the
Company’s ability to continue as a “going concern”;




                              (xii) the Company breaches any representation, warranty, covenant (other than the
covenants set forth in Section 14 of this Note) or other term or condition of any
Transaction Document, except, in the case of a breach of a covenant which is curable, only
if such breach continues for a period of at least 15 consecutive days;




                              (xiii) any breach or failure to comply with Section 14 of this Note;




                              (xiv) the Company fails to remove any restrictive legend on any certificate or any shares of Common Stock issued to the holders of Notes upon conversion of the Notes as and
when required by the Notes, the Securities Purchase Agreement or the Registration Rights
Agreement (a “Legend Removal Failure”), and any such failure continues uncured for five
Business Days after the Company has been notified thereof in writing by the holder;




                              (xv) the Company (a) fails to list the Registrable Securities (as defined in the
Registration Rights Agreement) on the Principal Market or on an other Eligible Market by the
60th day after the earlier to occur of the Effective Date and the Effectiveness
Deadline (as such terms are defined in the Registration Rights Agreement) or (b) such
Registrable Securities are delisted or suspended for more than five consecutive Business
Days after such date; or




                              (xvi) any Event of Default (as defined in the Other Notes) occurs with respect to any
Other Notes.



                    (b) Redemption Right. Promptly after the occurrence of an Event of Default with
respect to this Note or any Other Note, the Company shall deliver written notice thereof via
confirmed facsimile and overnight courier (an “Event of Default Notice”) to the Holder. At any
time after the earlier of the Holder’s receipt of an Event of Default Notice and the Holder
becoming aware of an Event of Default, the Holder may require the Company to redeem all or any
portion of this Note by delivering written notice thereof (the “Event of Default Redemption
Notice”) to the Company, which Event of Default Redemption Notice shall indicate the amount of
Principal of this Note the Holder is electing to redeem. Each portion of the Principal amount of
this Note subject to redemption by the Company pursuant to this Section 4(b) shall be redeemed by
the Company at a price (the “Event of Default Redemption Price”) equal to the greater of (A) the
sum of (1) the Conversion Amount to be redeemed and (2) the Make-Whole Amount, and (B) the product
of (1) the Conversion Rate with respect to such Conversion Amount in effect at such time as the
Holder delivers an Event of Default



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Redemption Notice, and (2) the highest Closing Sale Price of the Common Stock during the
period beginning on the date immediately preceding such Event of Default and ending on the date
immediately preceding the payment of the Event of Default Redemption Price. Redemptions required
by this Section 4(b) shall be made in accordance with the provisions of Section 12, to the extent
applicable. To the extent redemptions required by this Section 4(b) are deemed or determined by a
court of competent jurisdiction to be prepayments of the Note by the Company, such redemptions
shall be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this
Section 4, until the Event of Default Redemption Price (together with any interest thereon) is paid
in full, the Conversion Amount submitted for redemption under this Section 4(b) (together with any
interest thereon) may be converted, in whole or in part, by the Holder into Common Stock pursuant
to Section 3 hereof. The parties hereto agree that in the event of the Company’s redemption of any
portion of the Note under this Section 4(b), the Holder’s damages would be uncertain and difficult
to estimate because of the parties’ inability to predict future interest rates and the uncertainty
of the availability of a suitable substitute investment opportunity for the Holder. Accordingly,
any premium due under this Section 4(b) is intended by the parties to be, and shall be deemed, a
reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty.



                    (c) Additional Payment. Upon conversion of any Conversion Amount of this Note during
an Event of Default (occurring at any time), the Holder shall be entitled to receive on the
applicable Conversion Date an amount in cash equal to the Make-Whole Amount.



          (5) RIGHTS UPON FUNDAMENTAL TRANSACTION AND CHANGE OF CONTROL.




                    (a) Assumption. The Company shall not enter into or be party to a Fundamental
Transaction unless (i) the Successor Entity and, if an entity other than the Successor Entity is
the entity whose capital stock or assets the holders of the Common Stock are entitled to receive as
a result of such Fundamental Transaction, such other entity (the “Other Entity”), assumes in
writing all of the obligations of the Company under this Note and the other Transaction Documents
in accordance with the provisions of this Section 5(a) pursuant to written agreements in form and
substance satisfactory to the Required Holders and approved by the Required Holders prior to such
Fundamental Transaction, including agreements to deliver to each holder of Notes in exchange for
such Notes a security of the Successor Entity or Other Entity, as applicable, evidenced by a
written instrument substantially similar in form and substance to the Notes and with appropriate
provisions such that the rights and interests of the Holder and the economic value of this Note are
in no way diminished by such Fundamental Transaction, including, without limitation, having a
principal amount and interest rate equal to the principal amounts and the interest rates of the
Notes held by such holder and having similar ranking to the Notes, and satisfactory to the Required
Holders, (ii) the Successor Entity or the Other Entity, as applicable (including its Parent
Entity), is a publicly traded corporation whose common stock is quoted on or listed for trading on
an Eligible Market, and (iii) the consummation of such Fundamental Transaction shall not result in
the Successor Entity’s and/or such Other Entity’s, as applicable, failure to satisfy the financial
covenants in Section 14(e) of this Note. Upon the occurrence of any Fundamental Transaction, the
Successor Entity or the Other Entity, as applicable, shall succeed to, and be substituted for (so
that from and after the date of such Fundamental Transaction, the provisions of this Note referring
to the “Company”



- 10 -









 





shall refer instead to the Successor Entity or the Other Entity, as applicable), and may
exercise every right and power of the Company and shall assume all of the obligations of the
Company under this Note with the same effect as if such Successor Entity or such Other Entity, as
applicable, had been named as the Company herein. Upon consummation of the Fundamental
Transaction, the Successor Entity or the Other Entity, as applicable, shall deliver to the Holder
confirmation that there shall be issued upon conversion or redemption of this Note at any time
after the consummation of the Fundamental Transaction, in lieu of the shares of the Company’s
Common Stock (or other securities, cash, assets or other property) issuable upon the conversion or
redemption of the Notes prior to such Fundamental Transaction, such shares of publicly traded
common stock (or its equivalent) of the Successor Entity or the Other Entity, as applicable, as
adjusted in accordance with the provisions of this Note. The provisions of this Section shall
apply similarly and equally to successive Fundamental Transactions and shall be applied without
regard to any limitations on the conversion or redemption of this Note.



                    (b) Redemption Right. At least 45 days before the consummation of a Change of
Control, but in no event later than 15 days prior to the record date for the determination of
stockholders entitled to vote with respect thereto (or, with respect to a tender offer, or a change
in the Board of Directors, if the Company is unable to comply with this time requirement because of
the nature of the Change of Control, as soon as the Company reasonably believes that the Change of
Control is to be consummated), but not prior to the public announcement of such Change of Control,
the Company shall deliver written notice thereof via facsimile and overnight courier to the Holder
(a “Change of Control Notice”). If the terms of a Change of Control change materially from those
set forth in a Change of Control Notice, the Company shall deliver a new Change of Control Notice
and the time periods in this clause (b) shall be calculated based upon the Holder’s receipt of the
later Change of Control Notice. At any time during the period (the “Change of Control Period”)
beginning after the Holder’s receipt of a Change of Control Notice and ending on the date that is
15 Trading Days after the later of the consummation of such Change of Control or delivery of the
Change of Control Notice, the Holder may require the Company to redeem all or any portion of this
Note by delivering written notice thereof (“Change of Control Redemption Notice”) to the Company,
which Change of Control Redemption Notice shall indicate the portion of this Note that the Holder
is electing to redeem. The portion of this Note subject to redemption pursuant to this Section 5
(the “Redemption Portion”) shall be redeemed by the Company in cash at a price equal to the sum of
(i) the amount of any accrued and unpaid Interest on the Redemption Portion through the date of
such redemption payment together with the amount of any accrued and unpaid Late Charges on such
Redemption Portion and Interest and (ii) the greater of (1) the product of (A) the Redemption
Portion and (B) the quotient determined by dividing (I) the greater of the Closing Sale Price of
the Company’s Common Stock immediately prior to the consummation of the Change of Control, the
Closing Sale Price of the Common Stock immediately after the public announcement of such proposed
Change of Control and the Closing Sale Price of the Common Stock immediately prior to the public
announcement of such proposed Change of Control by (II) the Conversion Price and (2) the product of
the Change of Control Premium and the Redemption Portion (the “Change of Control Redemption
Price”). Redemptions required by this Section 5 shall be made in accordance with the provisions of
Section 12 to the extent applicable and shall have priority over payments to stockholders in
connection with a Change of Control. To the extent redemptions required by this Section 5(b) are
deemed or determined by a court of competent jurisdiction to be prepayments of the Note by the
Company, such redemptions shall



- 11 -









 





be deemed to be voluntary prepayments. Notwithstanding anything to the contrary in this
Section 5, until the Change of Control Redemption Price (together with any interest thereon) is
paid in full, the Conversion Amount submitted for redemption under this Section 5(c) (together with
any interest thereon) may be converted, in whole or in part, subject to Section 3(d), by the Holder
into Common Stock, or in the event the Conversion Date is after the consummation of the Change of
Control, shares of stock or equity interests of the Successor Entity or Other Entity, as
applicable, substantially equivalent to the Company’s Common Stock pursuant to Section 3. The
parties hereto agree that in the event of the Company’s redemption of any portion of the Note under
this Section 5(b), the Holder’s damages would be uncertain and difficult to estimate because of the
parties’ inability to predict future interest rates and the uncertainty of the availability of a
suitable substitute investment opportunity for the Holder. Accordingly, any Change of Control
Premium due under this Section 5(b) is intended by the parties to be, and shall be deemed, a
reasonable estimate of the Holder’s actual loss of its investment opportunity and not as a penalty.



                    (c) Additional Payment Upon Conversion. Upon any conversion of any Conversion Amount
of this Note during the Change of Control Period (regardless of when such Change of Control Period
occurs), the Holder shall be entitled to receive on the applicable Conversion Date an amount in
cash equal to (i) the Change of Control Redemption Price calculated with respect to such Conversion
Amount less (ii) such Conversion Amount.



               (6) RIGHTS UPON ISSUANCE OF PURCHASE RIGHTS AND OTHER CORPORATE EVENTS.



                    (a) Purchase Rights. If at any time the Company grants, issues or sells any Options,
Convertible Securities or rights to purchase stock, warrants, securities or other property pro rata
to the record holders of any class of Common Stock (collectively, “Purchase Rights”), then the
Holder will be entitled to acquire, upon the terms applicable to such Purchase Rights, the
aggregate Purchase Rights which the Holder could have acquired if the Holder had held the number of
shares of Common Stock acquirable upon complete conversion of this Note (without taking into
account any limitations or restrictions on the convertibility of this Note, but after the
calculation of such number of shares, the provisions of Section 3(d) shall continue to apply)
immediately before the date on which a record is taken for the grant, issuance or sale of such
Purchase Rights, or, if no such record is taken, the date as of which the record holders of Common
Stock are to be determined for the grant, issue or sale of such Purchase Rights.



                    (b) Other Corporate Events. In addition to and not in substitution for any other
rights hereunder, prior to the consummation of any Fundamental Transaction pursuant to which
holders of shares of Common Stock are entitled to receive securities or other assets with respect
to or in exchange for shares of Common Stock (a “Corporate Event”), the Company shall make
appropriate provision to insure that the Holder will thereafter have the right to receive upon a
conversion of this Note at any time after the consummation of the Fundamental Transaction
but prior to the Maturity Date, in lieu of the shares of the Common Stock (or other securities,
cash, assets or other property) purchasable upon the conversion of this Note prior to such
Fundamental Transaction, such shares of stock, securities, cash, assets or any other property
whatsoever (including warrants or other purchase or subscription rights) which the Holder would
have been entitled to receive upon the happening of such Fundamental Transaction had this Note



- 12 -









 





been converted immediately prior to the consummation of such Fundamental Transaction (without
taking into account any limitations or restrictions on the convertibility of this Note, but after
the calculation of such number of shares, the provisions of Section 3(d) shall continue to apply).
Provision made pursuant to the preceding sentence shall be in a form and substance satisfactory to
the Required Holders. The provisions of this Section shall apply similarly and equally to
successive Corporate Events and shall be applied without regard to any limitations on the
conversion or redemption of this Note.



               (7) RIGHTS UPON ISSUANCE OF OTHER SECURITIES.



                    (a) Adjustment of Conversion Price upon Issuance of Common Stock. If and whenever on
or after the Subscription Date, the Company issues or sells, or in accordance with this Section
7(a) is deemed to have issued or sold, any shares of Common Stock (including, without limitation,
the issuance or sale of shares of Common Stock owned or held by or for the account of the Company
and the issuance of any shares of Common Stock, Options or Convertible Securities in exchange for
any security such as a non-convertible note, but excluding shares of Common Stock deemed to have
been issued or sold by the Company in connection with any Excluded Security) for a consideration
per share (the “New Issuance Price”) less than a price (the “Applicable Price”) equal to the
Conversion Price in effect immediately prior to such issue or sale (the foregoing a “Dilutive
Issuance”), then immediately after such Dilutive Issuance, the Conversion Price then in effect
shall be reduced to an amount equal to the product of (A) the Conversion Price in effect
immediately prior to such Dilutive Issuance and (B) the quotient determined by dividing (1) the sum
of (I) the product derived by multiplying the Conversion Price in effect immediately prior to such
Dilutive Issuance and the number of shares of Common Stock Deemed Outstanding immediately prior to
such Dilutive Issuance plus (II) the consideration, if any, received by the Company upon such
Dilutive Issuance, by (2) the product derived by multiplying (I) the Conversion Price in effect
immediately prior to such Dilutive Issuance by (II) the number of shares of Common Stock Deemed
Outstanding immediately after such Dilutive Issuance. For purposes of determining the adjusted
Conversion Price under this Section 7(a), the following shall be applicable:




                              (i) Issuance of Options. If the Company in any manner grants or sells any
Options, whether or not immediately exercisable, in one transaction or in a Series of
related transactions, and the lowest price per share for which one share of Common Stock is
issuable upon the exercise of any such Option or upon conversion or exchange or exercise of
any Convertible Securities issuable upon exercise of such Option is less than the Applicable
Price, then such share of Common Stock shall be deemed to be outstanding and to have been
issued and sold by the Company at the time of the granting or sale of such Option for such
price per share. For purposes of this Section 7(a)(i), the “lowest price per share for
which one share of Common Stock is issuable upon the exercise of any such Option or upon
conversion or exchange or exercise of any Convertible Securities issuable upon exercise of
such Option” shall be equal to the sum of the lowest amounts of consideration (if any)
received or receivable (but excluding any contingent amounts) by the Company with respect to
any one share of Common Stock upon the granting or sale of the Option, upon exercise of the
Option and upon conversion, exercise or exchange of any Convertible Security issuable upon
exercise of such Option. No further adjustment of the Conversion Price shall be made upon
the actual issuance of



- 13 -









 





such share of Common Stock or of such Convertible Securities upon the exercise of such
Options or upon the actual issuance of such Common Stock upon conversion or exchange or
exercise of such Convertible Securities.




                              (ii) Issuance of Convertible Securities. If the Company in any manner issues
or sells any Convertible Securities, whether or not immediately convertible, in one
transaction or a series of related transactions, and the lowest price per share for which
one share of Common Stock is issuable upon such conversion or exchange or exercise thereof
is less than the Applicable Price, then such shares of Common Stock shall be deemed to be
outstanding and to have been issued and sold by the Company at the time of the issuance or
sale of such Convertible Securities for such price per share. For the purposes of this
Section 7(a)(ii), the “lowest price per share for which one share of Common Stock is
issuable upon such conversion or exchange or exercise” shall be equal to the sum of the
lowest amounts of consideration (if any) received or receivable (but excluding any
contingent amounts) by the Company with respect to one share of Common Stock upon the
issuance or sale of the Convertible Security and upon conversion, exercise or exchange of
such Convertible Security. No further adjustment of the Conversion Price shall be made upon
the actual issuance of such share of Common Stock upon conversion or exchange or exercise of
such Convertible Securities, and if any such issue or sale of such Convertible Securities is
made upon exercise of any Options for which adjustment of the Conversion Price had been or
are to be made pursuant to other provisions of this Section 7(a), no further adjustment of
the Conversion Price shall be made by reason of such issue or sale.




                              (iii) Change in Option Price or Rate of Conversion. If the purchase price
provided for in any Options, the additional consideration, if any, payable upon the issue,
conversion, exchange or exercise of any Convertible Securities, or the rate at which any
Convertible Securities are convertible into or exchangeable or exercisable for Common Stock
changes at any time, the Conversion Price in effect at the time of such change shall be
adjusted to the Conversion Price which would have been in effect at such time had such
Options or Convertible Securities provided for such changed purchase price, additional
consideration or changed conversion rate, as the case may be, at the time initially granted,
issued or sold. For purposes of this Section 7(a)(iii), if the terms of any Option or
Convertible Security that was outstanding as of the Subscription Date are changed in the
manner described in the immediately preceding sentence, then such Option or Convertible
Security and the shares of Common Stock deemed issuable upon exercise, conversion or
exchange thereof shall be deemed to have been issued as of the date of such change. No
adjustment shall be made if such adjustment would result in an increase of the Conversion
Price then in effect.




                              (iv) Calculation of Consideration Received. In case any Option is issued in
connection with the issue or sale of other securities of the Company, together comprising
one integrated transaction in which no specific consideration is allocated to such Options
by the parties thereto, the Options therefor will be deemed to have been issued for no
consideration. If any shares of Common Stock, Options or Convertible Securities are issued
or sold or deemed to have been issued or sold for cash, the consideration received therefor
will be deemed to be the net amount received by the



- 14 -









 





Company therefor, after deduction of all underwriting discounts or allowances in
connection with such issuance or sale. If any shares of Common Stock, Options or
Convertible Securities are issued or sold for a consideration other than cash, the
consideration received therefor will be deemed to be the fair value of such consideration,
except where such consideration consists of securities, in which case the amount of
consideration received by the Company will be the Closing Bid Price of such securities on
the date of receipt. If any Common Stock, Options or Convertible Securities are issued to
the owners of the non-surviving entity in connection with any merger in which the Company is
the surviving entity, the amount of consideration therefor will be deemed to be the fair
value of such portion of the net assets and business of the non-surviving entity as is
attributable to such Common Stock, Options or Convertible Securities, as the case may be.
The fair value of any consideration other than cash or securities will be determined jointly
by the Company and the Required Holders. If such parties are unable to reach agreement
within 10 days after the occurrence of an event requiring valuation (the “Valuation Event”),
the fair value of such consideration will be determined within five Business Days after the
10th day following the Valuation Event by an independent, reputable appraiser
jointly selected by the Company and the Required Holders. The determination of such
appraiser shall be deemed binding upon all parties absent manifest error and the fees and
expenses of such appraiser shall be borne by the Company. If the Company issues (or becomes
obligated to issue) shares of Common Stock pursuant to any antidilution or similar
adjustments (other than as a result of stock splits, stock dividends and the like) contained
in any Convertible Securities or Options outstanding as of the Subscription Date but not
included in Schedule 3(n) to the Securities Purchase Agreement, then all shares of
Common Stock so issued shall be deemed to have been issued for no consideration. If the
Company issues (or becomes obligated to issue) shares of Common Stock pursuant to any
antidilution or similar adjustments contained in any Convertible Securities or Options
included in Schedule 3(n) to the Securities Purchase Agreement as a result of the
issuance of the Notes, Warrants or any securities issued as part of the Junior Financing (as
such term is defined in the Securities Purchase Agreement) and the number of shares that the
Company issues (or is obligated to issue) as a result of such issuance exceeds the amount
specified in Schedule 3(n) to the Securities Purchase Agreement, such excess shares
shall be deemed to have been issued for no consideration. Notwithstanding anything else
herein to the contrary, if Common Stock, Options or Convertible Securities are issued or
sold in conjunction with each other as part of a single transaction or in a series of
related transactions, the holder hereof may elect to determine the amount of consideration
deemed to be received by the Company therefor by deducting the fair value of any type of
securities (the “Disregarded Securities”) issued or sold in such transaction or series of
transactions. If the holder makes an election pursuant to the immediately preceding
sentence, no adjustment to the Conversion Price shall be made pursuant to this Section 7(a)
for the issuance of the Disregarded Securities or upon any conversion, exercise or exchange
thereof.




                              (v) Record Date. If the Company takes a record of the holders of Common Stock
for the purpose of entitling them (A) to receive a dividend or other distribution payable in
Common Stock, Options or in Convertible Securities or (B) to subscribe for or purchase
Common Stock, Options or Convertible Securities, then such record date will be deemed to be
the date of the issue or sale of the Common Stock



- 15 -









 





deemed to have been issued or sold upon the declaration of such dividend or the making
of such other distribution or the date of the granting of such right of subscription or
purchase, as the case may be.



                    (b) Adjustment of Conversion Price upon Subdivision or Combination of Common Stock.
If the Company at any time on or after the Issuance Date subdivides (by any stock split, stock
dividend, recapitalization or otherwise) one or more classes of its outstanding shares of Common
Stock into a greater number of shares, the Conversion Price in effect immediately prior to such
subdivision will be proportionately reduced. If the Company at any time on or after the Issuance
Date combines (by combination, reverse stock split or otherwise) one or more classes of its
outstanding shares of Common Stock into a smaller number of shares, the Conversion Price in effect
immediately prior to such combination will be proportionately increased. Any adjustment under this
Section 7(b) shall become effective at the close of business on the date the subdivision or
combination becomes effective.



                    (c) Other Events. If any event occurs of the type contemplated by the provisions of
this Section 7 but not expressly provided for by such provisions (including, without limitation,
the granting of stock appreciation rights, phantom stock rights or other rights with equity
features), then the Company’s Board of Directors will make an appropriate adjustment in the
Conversion Price so as to protect the rights of the Holder under this Note; provided that no such
adjustment will increase the Conversion Price as otherwise determined pursuant to this Section 7.



                    (d) Notice of Adjustments. Upon the occurrence of each adjustment or readjustment of
the Conversion Price pursuant to this Section 7, amounting to a more than 1% change, individually
or in the aggregate, in such Conversion Price, or any change in the number or type of stock,
securities and/or other property issuable upon conversion of the Notes, the Company, at its
expense, shall promptly compute such adjustment or readjustment or change and prepare, furnish to
the Holder a certificate setting forth such adjustment or readjustment or change is based and
promptly make a public announcement of such adjustment or readjustment. The Company shall, upon
the written request at any time of the Holder, furnish a like certificate setting forth (i) such
adjustment or readjustment or change, (ii) the Conversion Price at the time in effect and (iii) the
number of shares of Common Stock and the amount, if any, of other securities or property which at
the time would be received upon conversion of this Note.



               (8) COMPANY’S RIGHT OF OPTIONAL REDEMPTION.



                    (a) Optional Redemption. If on any Trading Day (the “Redemption Period End Day”) on
or after the 60th day prior to the third anniversary of the Issuance Date, the Weighted
Average Price of the shares of Common Stock has equaled or exceeded 200% of the Conversion Price
then in effect for each of 20 consecutive Trading Days ending on the Redemption Period End Day and
provided that no Equity Conditions Failure then exists and so long as there is no restriction on
the Company or PubCo paying the Make-Whole Amount in cash as contemplated in clause (2) below,
whether such restriction is pursuant to the Senior Indebtedness, the Subordination Agreement or
otherwise, the Company shall have the right to redeem all or any portion of the Conversion Amount
then remaining under this Note (an “Optional Redemption”). The portion of this Note subject to
redemption pursuant to this



- 16 -









 





Section 8 shall be redeemed by the Company in cash at a price equal to the sum of (i) the
Principal being redeemed, (ii) the applicable Make-Whole Amount and (iii) the amount of any accrued
and unpaid Late Charges on such Principal and any accrued and unpaid Interest through the date of
redemption (the “Optional Redemption Price”). The Company may exercise its redemption right under
this Section 8 by delivering within not more than two Trading Days following the Redemption Period
End Day a written notice thereof by confirmed facsimile and overnight courier to all, but not less
than all, of the holders of Notes and the Transfer Agent (the “Optional Redemption Notice” and the
date such notice is delivered to all the holders is referred to as the “Optional Redemption Notice
Date”). The Optional Redemption Notice shall be irrevocable. The Optional Redemption Notice shall
state (A) the date on which the Optional Redemption shall occur (the “Optional Redemption Date”)
which date shall be not less than 30 days nor more than 60 days after the Optional Redemption
Notice Date and in no event shall be prior to the third anniversary of the Issuance Date, (B) the
aggregate Principal amount (the “Optional Redemption Amount”) of the Notes which the Company has
elected to be subject to Optional Redemption from all of the holders of the Notes pursuant to this
Section 8 (and analogous provisions under the Other Notes) on the Optional Redemption Date and (C)
the Make-Whole Amount to be paid to the Holder on the Optional Redemption Date; provided, however,
that the Company shall not elect to redeem any Conversion Amount under this Section 8 in excess of
the product of the Conversion Price multiplied by the lesser of (I) the Holder’s Pro Rata Amount of
the aggregate dollar trading volume (as reported on Bloomberg) of the Common Stock over the 10
consecutive Trading Day period ending on the Trading Day immediately preceding the Optional
Redemption Notice Date and (II) 25% of the Holder’s Pro Rata Amount of the aggregate dollar trading
volume (as reported by Bloomberg) of the Common Stock during the period beginning on the Trading
Day immediately following the Optional Redemption Notice Date and ending on the Optional Redemption
Date. The Company will make a public announcement containing the information set forth in the
Optional Redemption Notice on or before the Optional Redemption Notice Date. The Company may not
effect more than one Optional Redemption during any consecutive 30 Trading Day period.
Notwithstanding anything to the contrary in this Section 8, until the Optional Redemption Price is
paid, in full, the Optional Redemption Amount may be converted, in whole or in part, by the Holders
into shares of Common Stock pursuant to Section 3. All Conversion Amounts converted by the Holder
after the Optional Redemption Notice Date shall (1) reduce the Conversion Amount of this Note
required to be redeemed on the Optional Redemption Date and (2) be accompanied by an amount in cash
equal to the applicable Make-Whole Amount. Redemptions made pursuant to this Section 8 shall be
made in accordance with Section 12 to the extent applicable.



                    (b) Pro Rata Redemption Requirement. If the Company elects to cause an Optional
Redemption pursuant to Section 8(a), then it must simultaneously take the same action with respect
to the Other Notes. If the Company elects to cause an Optional Redemption pursuant to Section 8(a)
(or similar provisions under the Other Notes) with respect to less than all of the principal amount
of the Notes then outstanding, then the Company shall require redemption of a Principal amount from
the Holder and each holder of the Other Notes equal to the product of (i) the aggregate principal
amount of Notes which the Company has elected to cause to be redeemed pursuant to Section 8(a),
multiplied by (ii) the fraction, the numerator of which is the sum of the initial principal amount
of Notes purchased by such holder and the denominator of which is the initial principal amounts of
Notes purchased by all holders holding outstanding Notes (such fraction with respect to each holder
is referred to as its



- 17 -









 





“Redemption Allocation Percentage”, and such amount with respect to each holder is referred to
as its “Pro Rata Redemption Amount”); provided that in the event that the initial holder of any
Notes has sold or otherwise transferred any of such holder’s Notes, the transferee shall be
allocated a pro rata portion of such holder’s Redemption Allocation Percentage and Pro Rata
Redemption Amount.



               (9) SECURITY. This Note and the Other Notes are secured to the extent and in the
manner set forth in the Security Documents.



               (10) NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will
not, by amendment of its Certificate of Incorporation, Bylaws or through any reorganization,
transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of
securities, or any other voluntary action, avoid or seek to avoid the observance or performance of
any of the terms of this Note, and will at all times in good faith carry out all of the provisions
of this Note and take all action as may be required to protect the rights of the Holder of this
Note.



               (11) RESERVATION OF AUTHORIZED SHARES.



                    (a) Reservation. The Company shall initially reserve out of its authorized and
unissued Common Stock a number of shares of Common Stock for each of the Notes equal to 130% of the
Conversion Rate with respect to the Conversion Amount of each such Note as of the Issuance Date.
So long as any of the Notes are outstanding, the Company shall take all action necessary to reserve
and keep available out of its authorized and unissued Common Stock, solely for the purpose of
effecting the conversion of the Notes, 130% of the number of shares of Common Stock as shall from
time to time be necessary to effect the conversion of all of the Notes then outstanding; provided
that at no time shall the number of shares of Common Stock so reserved be less than the number of
shares required to be reserved by the previous sentence (without regard to any limitations on
conversions) (the “Required Reserve Amount”). The initial number of shares of Common Stock
reserved for conversions of the Notes and each increase in the number of shares so reserved shall
be allocated pro rata among the holders of the Notes based on the principal amount of the Notes
held by each holder at the Closing or increase in the number of reserved shares, as the case may be
(the “Authorized Share Allocation”). In the event that a holder shall sell or otherwise transfer
any of such holder’s Notes, each transferee shall be allocated a pro rata portion of such holder’s
Authorized Share Allocation. Any shares of Common Stock reserved and allocated to any Person which
ceases to hold any Notes shall be allocated to the remaining holders of Notes, pro rata based on
the principal amount of the Notes then held by such holders.



                    (b) Insufficient Authorized Shares. If at any time while any of the Notes remain
outstanding the Company does not have a sufficient number of authorized and unreserved shares of
Common Stock to satisfy its obligation to reserve for issuance upon conversion of the Notes at
least a number of shares of Common Stock equal to the Required Reserve Amount (an “Authorized Share
Failure”), then the Company shall immediately take all action necessary to increase the Company’s
authorized shares of Common Stock to an amount sufficient to allow the Company to reserve the
Required Reserve Amount for the Notes then outstanding. Without limiting the generality of the
foregoing sentence, as soon as practicable



- 18 -









 





after the date of the occurrence of an Authorized Share Failure, but in no event later than 60
days after the occurrence of such Authorized Share Failure, the Company shall hold a meeting of its
stockholders for the approval of an increase in the number of authorized shares of Common Stock.
In connection with such meeting, the Company shall provide each stockholder with a proxy statement
and shall use its best efforts to solicit its stockholders’ approval of such increase in authorized
shares of Common Stock and to cause its board of directors to recommend to the stockholders that
they approve such proposal. In lieu of holding a meeting of its stockholders, the Company may
obtain shareholder approval of the increase in the number of authorized shares of Common Stock by
written consent in lieu of meeting to the extent permitted by law and the rules of any Eligible
Market upon which the Common Stock is then traded.



               (12) REDEMPTIONS.



                    (a) Mechanics. The Company shall deliver the applicable Event of Default Redemption
Price to the Holder within five Business Days after the Company’s receipt of the Holder’s Event of
Default Redemption Notice. If the Holder has submitted a Change of Control Redemption Notice in
accordance with Section 5(b), the Company shall deliver the applicable Change of Control Redemption
Price to the Holder concurrently with the consummation of such Change of Control if such notice is
received prior to the consummation of such Change of Control and within five Business Days after
the Company’s receipt of such notice otherwise. The Company shall deliver the Optional Redemption
Price to the Holder on the Optional Redemption Date. In the event of a redemption of less than all
of the Principal of this Note, the Company shall promptly cause to be issued and delivered to the
Holder a new Note (in accordance with Section 18(d)) representing the outstanding Principal which
has not been redeemed. If the Company fails to pay the Holder the applicable Redemption Price to
the Holder within the time period required, at any time thereafter and until the Company pays such
unpaid Redemption Price in full, the Holder shall have the option, by written notice to the
Company, in lieu of redemption, to require the Company to promptly return to the Holder all or any
portion of this Note representing the Conversion Amount that was submitted for redemption and for
which the applicable Redemption Price (together with any Late Charges thereon) has not been paid.
Upon the Company’s receipt of such notice, (x) the Redemption Notice shall be null and void with
respect to such Conversion Amount, (y) the Company shall immediately return this Note, or issue a
new Note (in accordance with Section 18(d)) to the Holder representing such Conversion Amount and
(z) the Conversion Price of this Note or such new Notes shall be adjusted to the lesser of (A) the
Conversion Price as in effect on the date on which the Redemption Notice is voided and (B) the
lowest Closing Bid Price of the Common Stock during the period beginning on and including the date
on which the Redemption Notice is delivered to the Company and ending on and including the date on
which the Redemption Notice is voided. The Holder’s delivery of a notice voiding a Redemption
Notice and exercise of its rights following such notice shall not affect the Company’s obligations
to make any payments of Late Charges which have accrued prior to the date of such notice with
respect to the Conversion Amount subject to such notice.



                    (b) Redemption by Other Holders. Upon the Company’s receipt of notice from any of the
holders of the Other Notes for redemption or repayment as a result of an event or occurrence
substantially similar to the events or occurrences described in Section 4(b) or Section 5(b) (each,
an “Other Redemption Notice”), the Company shall immediately, but no



- 19 -









 





later than one Business Day of its receipt thereof, forward to the Holder by facsimile a copy
of such notice and make a prompt public announcement thereof. If the Company receives a Redemption
Notice and one or more Other Redemption Notices, during the seven Business Day period beginning on
and including the date which is three Business Days prior to the Company’s receipt of the Holder’s
Redemption Notice and ending on and including the date which is three Business Days after the
Company’s receipt of the Holder’s Redemption Notice and the Company is unable to redeem all
principal, interest and other amounts designated in such Redemption Notice and such Other
Redemption Notices received during such seven Business Day period, then the Company shall redeem a
pro rata amount from each holder of the Notes (including the Holder) based on the principal amount
of the Notes submitted for redemption pursuant to such Redemption Notice and such Other Redemption
Notices received by the Company during such seven Business Day period.



               (13) VOTING RIGHTS. The Holder shall have no voting rights as the holder of this
Note, except as required by law, including, but not limited to, the Delaware General Corporation
Law, and as expressly provided in this Note.



               (14) COVENANTS.



                    (a) Rank. All payments due under this Note (a) shall rank pari passu with all Other
Notes and (b) shall be senior to all other Indebtedness of the Company and its Subsidiaries, other
than Senior Indebtedness, the obligations of the Company or its Subsidiaries under any lease of
real or personal property by such Person as lessee which is required under GAAP to be capitalized
on such Person’s balance sheet and Indebtedness permitted by clause (v) of the definition of
“Permitted Lien.”



                    (b) Incurrence of Indebtedness. So long as this Note is outstanding, the Company
shall not, and the Company shall not permit any of its Subsidiaries to, directly or indirectly,
incur or guarantee, assume or suffer to exist any Indebtedness, other than (i) the Indebtedness
evidenced by the Notes and (ii) Permitted Indebtedness.



                    (c) Existence of Liens. So long as this Note is outstanding, the Company shall not,
and the Company shall not permit any of its Subsidiaries to, directly or indirectly, allow or
suffer to exist any mortgage, lien, pledge, charge, security interest or other encumbrance upon or
in any property or assets (including accounts and contract rights) owned by the Company or any of
its Subsidiaries (collectively, “Liens”) other than Permitted Liens.



                    (d) Restricted Payments. The Company shall not, and the Company shall not permit any
of its Subsidiaries to, directly or indirectly, (i) redeem, defease, repurchase, repay or make any
payments in respect of, by the payment of cash or cash equivalents (in whole or in part, whether by
way of open market purchases, tender offers, private transactions or otherwise), all or any portion
of any Permitted Indebtedness (other than the Senior Indebtedness), whether by way of payment in
respect of principal of (or premium, if any) or interest on, such Indebtedness if at the time such
payment is due or is otherwise made or, after giving effect to such payment, an event constituting,
or that with the passage of time and without being cured would constitute, an Event of Default has
occurred and is continuing, (ii) declare or pay any cash dividend or distribution on the Common
Stock other than the payment of the



- 20 -









 





Special Dividend (as such term is defined in the Securities Purchase Agreement) or (iii)
redeem, repurchase or otherwise acquire or retire for value any shares of Common Stock (as defined
in Exhibit M to the Securities Purchase Agreement) other than the Required Conversions (as such
term is defined in the Securities Purchase Agreement).



                    (e) Leverage Ratio.




                              (i) So long as this Note is outstanding, the Company shall not permit the ratio (the
“Leverage Ratio”) of Indebtedness to Consolidated EBITDA of the Company and its Subsidiaries
as of the end of each period of four consecutive Fiscal Quarters of the Company and its
Subsidiaries for which the last quarter ends on a date set forth below to be greater than
the applicable ratio set forth below:



	 	 	 
	Fiscal Quarter End	 	Leverage Ratio
	For each Fiscal Quarter from April 2, 2006 through April 1, 2007

	 	4.75:1.00
	 
	 	 
	July 1, 2007 and each Fiscal Quarter thereafter

	 	4.00:1.00







                              (ii) The Company shall publicly release its operating results (the “Operating Results”)
for each Fiscal Quarter no later than the 45th day after the end of each Fiscal
Quarter (each an “Announcement Date”). On each Announcement Date, the Company shall
announce whether the Company has satisfied the Leverage Ratio for the Fiscal Quarter to
which such Operating Results announcement relates. Concurrently with such release or
announcement, the Company shall also provide to the Holder a written certification, executed
on behalf of the Company by its Chief Financial Officer, certifying whether the Company has
satisfied or failed, as applicable, the Leverage Ratio.



                    (f) Inactive Subsidiaries. Except with the prior written approval of the Required
Holders (as defined below), the Company agrees that each Inactive Subsidiary shall remain a dormant
company until such time as each such Inactive Subsidiary is dissolved in accordance with the laws
of its jurisdiction of incorporation. Except with the prior written approval of the Required
Holders, the Company shall not, and shall cause its Subsidiaries not to, transfer any property or
asset to any Inactive Subsidiary.



               (15) PARTICIPATION. The Holder, as the holder of this Note, shall be entitled to
receive such dividends paid and distributions made to the holders of Common Stock to the same
extent as if the Holder had converted this Note into Common Stock (without regard to any
limitations on conversion herein or elsewhere) and had held such shares of Common Stock on the
record date for such dividends and distributions. Payments under the preceding sentence shall be
made concurrently with the dividend or distribution to the holders of Common
Stock.



- 21 -









 





               (16) VOTE TO ISSUE, OR CHANGE THE TERMS OF, NOTES. The affirmative vote at a meeting
duly called for such purpose or the written consent without a meeting of the Required Holders shall
be required for any change or amendment to this Note or the Other Notes provided, that without the
consent of each Holder so affected, no amendment shall (a) amend Section 3(d) or the application of
Section 3(d) to any other provision of this Note or (b) have the effect of creating different
provisions in different Notes.



               (17) TRANSFER. This Note and any shares of Common Stock issued upon conversion of
this Note may be offered, sold, assigned or transferred by the Holder without the consent of the
Company, subject only to the provisions of Section 2(f) of the Securities Purchase Agreement.



               (18) REISSUANCE OF THIS NOTE.



                    (a) Transfer. If this Note is to be transferred, the Holder shall surrender this Note
to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder
a new Note (in accordance with Section 18(d)), registered as the Holder may request, representing
the outstanding Principal being transferred by the Holder and, if less then the entire outstanding
Principal is being transferred, a new Note (in accordance with Section 18(d)) to the Holder
representing the outstanding Principal not being transferred. The Holder and any assignee, by
acceptance of this Note, acknowledge and agree that, by reason of the provisions of Section
3(c)(iv) following conversion or redemption of any portion of this Note, the outstanding Principal
represented by this Note may be less than the Principal amount stated on the face of this Note.



                    (b) Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence
reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Note,
and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to
the Company in customary form and, in the case of mutilation, upon surrender and cancellation of
this Note, the Company shall execute and deliver to the Holder a new Note (in accordance with
Section 18(d)) representing the outstanding Principal.



                    (c) Note Exchangeable for Different Denominations. This Note is exchangeable, upon
the surrender hereof by the Holder at the principal office of the Company, for a new Note or Notes
(in accordance with Section 18(d) and in principal amounts of at least $100,000) representing in
the aggregate the outstanding Principal of this Note, and each such new Note will represent such
portion of such outstanding Principal as is designated by the Holder at the time of such surrender.



                    (d) Issuance of New Notes. Whenever the Company is required to issue a new Note
pursuant to the terms of this Note, such new Note (i) shall be of like tenor with this Note, (ii)
shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or
in the case of a new Note being issued pursuant to Section 18(a) or Section 18(c), the Principal
designated by the Holder which, when added to the principal represented by the other new Notes
issued in connection with such issuance, does not exceed the Principal



- 22 -









 





remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii)
shall have an issuance date, as indicated on the face of such new Note, which is the same as the
Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and (v)
shall represent accrued Interest and Late Charges on the Principal and Interest of this Note, from
the Issuance Date.



               (19) REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF.
The remedies provided in this Note shall be cumulative and in addition to all other remedies
available under this Note and any of the other Transaction Documents at law or in equity (including
a decree of specific performance and/or other injunctive relief), and nothing herein shall limit
the Holder’s right to pursue actual and consequential damages for any failure by the Company to
comply with the terms of this Note. The Company covenants to the Holder that there shall be no
characterization concerning this instrument other than as expressly provided herein. Amounts set
forth or provided for herein with respect to payments, conversion and the like (and the computation
thereof) shall be the amounts to be received by the Holder and shall not, except as expressly
provided herein, be subject to any other obligation of the Company (or the performance thereof).
The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable
harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company
therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be
entitled, in addition to all other available remedies, to an injunction restraining any breach,
without the necessity of showing economic loss and without any bond or other security being
required.



               (20) PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER COSTS. If (a) this Note is placed
in the hands of an attorney for collection or enforcement or is collected or enforced through any
legal proceeding or the Holder otherwise takes action to collect amounts due under this Note or to
enforce the provisions of this Note or (b) there occurs any bankruptcy, reorganization,
receivership of the Company or other proceedings affecting Company creditors’ rights and involving
a claim under this Note, then the Company shall pay the costs incurred by the Holder for such
collection, enforcement or action or in connection with such bankruptcy, reorganization,
receivership or other proceeding, including, but not limited to, attorneys’ fees and disbursements.



               (21) CONSTRUCTION; HEADINGS. This Note shall be deemed to be jointly drafted by the
Company and all the Purchasers and shall not be construed against any person as the drafter hereof.
The headings of this Note are for convenience of reference and shall not form part of, or affect
the interpretation of, this Note.



               (22) FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder
in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such power, right or privilege preclude other or
further exercise thereof or of any other right, power or privilege.



               (23) DISPUTE RESOLUTION. In the case of a dispute as to the determination of the
Closing Bid Price, the Closing Sale Price or the Weighted Average Price or the arithmetic
calculation of the Conversion Rate or the Redemption Price, the Company shall submit the



- 23 -









 





disputed determinations or arithmetic calculations via facsimile within one Business Day of
receipt, or deemed receipt, of the Conversion Notice or Redemption Notice or other event giving
rise to such dispute, as the case may be, to the Holder. If the Holder and the Company are unable
to agree upon such determination or calculation within one Business Day of such disputed
determination or arithmetic calculation being submitted to the Holder, then the Company shall,
within one Business Day submit via facsimile (a) the disputed determination of the Closing Bid
Price, the Closing Sale Price or the Weighted Average Price to an independent, reputable investment
bank selected by the Company and approved by the Holder or (b) the disputed arithmetic calculation
of the Conversion Rate or the Redemption Price to the Company’s independent, outside accountant.
The Company, at the Company’s expense, shall cause the investment bank or the accountant, as the
case may be, to perform the determinations or calculations and notify the Company and the Holder of
the results no later than five Business Days from the time it receives the disputed determinations
or calculations. Such investment bank’s or accountant’s determination or calculation, as the case
may be, shall be binding upon all parties absent demonstrable error.



               (24) NOTICES; PAYMENTS.



                    (a) Notices. Whenever notice is required to be given under this Note, unless
otherwise provided herein, such notice shall be given in accordance with Section 9(f) of the
Securities Purchase Agreement. The Company shall provide the Holder with prompt written notice of
all actions taken pursuant to this Note, including in reasonable detail a description of such
action and the reason therefore. Without limiting the generality of the foregoing, the Company
will give written notice to the Holder (i) immediately upon any adjustment of the Conversion Price,
setting forth in reasonable detail, and certifying, the calculation of such adjustment and (ii) at
least 10 days prior to the date on which the Company closes its books or takes a record (A) with
respect to any dividend or distribution upon the Common Stock, (B) with respect to any pro rata
subscription offer to holders of Common Stock or (C) for determining rights to vote with respect to
any Fundamental Transaction, dissolution or liquidation, provided in each case that such
information shall be made known to the public prior to or in conjunction with such notice being
provided to the Holder.



                    (b) Payments. Whenever any payment of cash is to be made by the Company to any Person
pursuant to this Note, such payment shall be made in lawful money of the United States of America
by a check drawn on the account of the Company and sent via overnight courier service to such
Person at such address as previously provided to the Company in writing (which address, in the case
of each of the Purchasers, shall initially be as set forth on the Schedule of Buyers attached to
the Securities Purchase Agreement); provided that the Holder may elect to receive a payment of cash
via wire transfer of immediately available funds by providing the Company with prior written notice
setting out such request and the Holder’s wire transfer instructions. Whenever any amount
expressed to be due by the terms of this Note is due on any day which is not a Business Day, the
same shall instead be due on the next succeeding day which is a Business Day and, in the case of
any Interest Date which is not the date on which this Note is paid in full, the extension of the
due date thereof shall not be taken into account for purposes of determining the amount of Interest
due on such date. Any amount of Principal or other amounts due under the Transaction Documents,
other than Interest, which is not paid when due shall result in a late charge being incurred and
payable by the Company in an amount equal



- 24 -









 





to interest on such amount at the rate of 12% per annum from the date such amount was due
until the same is paid in full (“Late Charge”).



               (25) CANCELLATION. After all Principal, accrued Interest and other amounts at any
time owed on this Note have been paid in full, this Note shall automatically be deemed canceled,
shall be surrendered to the Company for cancellation and shall not be reissued.



               (26) WAIVER OF NOTICE. To the extent permitted by law, the Company hereby waives
demand, notice, protest and all other demands and notices in connection with the delivery,
acceptance, performance, default or enforcement of this Note and the Securities Purchase Agreement.



               (27) GOVERNING LAW. This Note shall be construed and enforced in accordance with, and
all questions concerning the construction, validity, interpretation and performance of this Note
shall be governed by, the internal laws of the State of New York, without giving effect to any
choice of law or conflict of law provision or rule (whether of the State of New York or any other
jurisdictions) that would cause the application of the laws of any jurisdictions other than the
State of New York.



               (28) CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall have
the following meanings:



                    (a) “Bloomberg” means Bloomberg Financial Markets.



                    (b) “Business Day” means any day other than Saturday, Sunday or other day on which commercial
banks in The City of New York are authorized or required by law to remain closed.



                    (c) “Capital Stock” of any person means any and all shares, interests, participations or other
equivalents (however designated) of capital stock of, or other equity interests in, such Person and
all warrants or options to acquire such capital stock or equity interests.



                    (d) “Change of Control” means any Fundamental Transaction other than (i) any reorganization,
recapitalization or reclassification of the Common Stock in which holders of the Company’s voting
power immediately prior to such reorganization, recapitalization or reclassification continue after
such reorganization, recapitalization or reclassification to hold publicly traded securities and,
directly or indirectly, the voting power of the surviving entity or entities necessary to elect a
majority of the members of the board of directors (or their equivalent if other than a corporation)
of such entity or entities, or (ii) pursuant to a migratory merger effected solely for the purpose
of changing the jurisdiction of incorporation of the Company.



                    (e) “Change of Control Premium” means (i) from the Issuance Date until the 18 month
anniversary thereof, 120%, (ii) from the next day until the 42nd month anniversary of
the Issuance Date, 115% and (iii) thereafter, 110%.



- 25 -









 





                    (f) “Closing Bid Price” and “Closing Sale Price” means, for any security as of any date, the
last closing bid price and last closing trade price, respectively, for such security on the
Principal Market, as reported by Bloomberg, or, if the Principal Market begins to operate on an
extended hours basis and does not designate the closing bid price or the closing trade price, as
the case may be, then the last bid price or last trade price, respectively, of such security prior
to 4:00:00 p.m., New York Time, as reported by Bloomberg, or, if the Principal Market is not the
principal securities exchange or trading market for such security, the last closing bid price or
last trade price, respectively, of such security on the Eligible Market that is the principal
securities exchange or trading market where such security is listed or traded as reported by
Bloomberg, or if the foregoing do not apply, the last closing bid price or last trade price,
respectively, of such security in the over-the-counter market on the electronic bulletin board for
such security as reported by Bloomberg, or, if no closing bid price or last trade price,
respectively, is reported for such security by Bloomberg, the average of the bid prices, or the ask
prices, respectively, of any market makers for such security as reported in the “pink sheets” by
Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the Closing Bid Price or the
Closing Sale Price cannot be calculated for a security on a particular date on any of the foregoing
bases, the Closing Bid Price or the Closing Sale Price, as the case may be, of such security on
such date shall be the fair market value as mutually determined by the Company and the Holder. If
the Company and the Holder are unable to agree upon the fair market value of such security, then
such dispute shall be resolved pursuant to Section 23. All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.



                    (g) “Common Stock Deemed Outstanding” means, at any given time, the number of shares of Common
Stock actually outstanding at such time, plus the number of shares of Common Stock deemed to be
outstanding pursuant to Sections 7(a)(i) and 7(a)(ii) hereof regardless of whether the Options or
Convertible Securities are actually exercisable at such time, but excluding any Common Stock owned
or held by or for the account of the Company or issuable upon conversion or exercise, as
applicable, of the Notes, the Warrants and the securities issued as part of the Junior Financing
(as such term is defined in the Securities Purchase Agreement).



                    (h) “Consolidated EBITDA” means, with respect to any Person for any period, the Consolidated
Net Income of such Person and its Subsidiaries for such period, plus (i) without
duplication, the sum of the following amounts of such Person and its Subsidiaries for such period
and to the extent deducted in determining Consolidated Net Income of such Person for such period:
(A) Consolidated Net Interest Expense, (B) income tax expense, (C) depreciation expense, and (D)
amortization expense, plus, (ii) when calculated with respect to the Company for any period
in fiscal year 2005, without duplication, the sum of the following amounts for such period to the
extent deducted in determining Consolidated Net Income of the Company for such period: (I) any
non-material change in the balance of the accrued liability related to the worker’s compensation
insurance program in place prior to August 2002, as more fully explained in Notes A and N to the
Company’s 2004 annual report, (II) the annual management fee to KRG Capital Partners, LLC incurred
prior to Closing, (III) charges related to employee terminations in the first Fiscal Quarter of
2005, (IV) fees and expenses related to the transactions contemplated by the Securities Purchase
Agreement not to exceed $6 million, (V) accounting treatment of the transactions contemplated by
the Securities Purchase Agreement



- 26 -









 





with respect to outstanding management equity plan shares and preferred shares and (VI)
retention payments made to members of the Company’s management in connection with the transactions
contemplated by the Securities Purchase Agreement, plus, (iii) when calculated with respect
to the Company for any period in fiscal year 2006, without duplication, the sum of the amounts in
clauses (ii) (II), (IV) and (VI) above for such period to the extent deducted in determining
Consolidated Net Income of the Company for such period.



                    (i) “Consolidated Net Income” means, with respect to any Person for any period, the net income
(loss) of such Person and its Subsidiaries for such period, determined on a consolidated basis and
in accordance with GAAP, but excluding from the determination of Consolidated Net Income (without
duplication) (i) any extraordinary or non recurring gains or losses or gains or losses from
dispositions of assets, (ii) restructuring charges, (iii) any tax refunds, net operating losses or
other net tax benefits, (iv) effects of discontinued operations and (v) interest income (including
interest paid-in-kind).



                    (j) “Consolidated Net Interest Expense” means, with respect to any Person for any period,
gross interest expense of such Person and its Subsidiaries for such period determined on a
consolidated basis and in accordance with GAAP (including, without limitation, interest expense
paid to affiliates of such Person), less (i) the sum of (A) interest income for such period
and (B) gains for such period on hedging agreements (to the extent not included in interest income
above and to the extent not deducted in the calculation of gross interest expense), plus
(ii) the sum of (A) losses for such period on hedging agreements (to the extent not included in
gross interest expense) and (B) the upfront costs or fees for such period associated with hedging
agreements (to the extent not included in gross interest expense), in each case, determined on a
consolidated basis and in accordance with GAAP.



                    (k) “Contingent Obligation” means, as to any Person, any direct or indirect liability,
contingent or otherwise, of that Person with respect to any indebtedness, lease, dividend or other
obligation of another Person if the primary purpose or intent of the Person incurring such
liability, or the primary effect thereof, is to provide assurance to the obligee of such liability
that such liability will be paid or discharged, or that any agreements relating thereto will be
complied with, or that the holders of such liability will be protected (in whole or in part)
against loss with respect thereto.



                    (l) “Convertible Securities” means any stock or securities (other than Options) directly or
indirectly convertible into or exercisable or exchangeable for shares of Common Stock.



                    (m) “Credit Facility” means the Credit and Security Agreement dated as of March 7, 2002 by and
among the Company, certain subsidiaries of the Company, and Wells Fargo Bank, N.A., acting through
its Wells Fargo Business Credit operating division (as has been amended, shall be amended in
conjunction with the execution of the Securities Purchase Agreement and as may be amended from time
to time) and all other Loan Documents (as defined therein), each as has been amended and may be
amended from time to time, or any refunding or replacement thereof.



- 27 -









 





                    (n) “Eligible Market” means the Principal Market, the Nasdaq National Market, The Nasdaq
Capital Market, The New York Stock Exchange, Inc. or the American Stock Exchange.



                    (o) “Equity Conditions” means that each of the following conditions is satisfied: (i) on each
day during the Equity Conditions Measuring Period (as defined below), either (x) the Registration
Statement filed pursuant to the Registration Rights Agreement shall be effective and available for
the resale of all remaining Registrable Securities in accordance with the terms of the Registration
Rights Agreement and there shall not have been any Grace Periods (as defined in the Registration
Rights Agreement) or (y) all shares of Common Stock issuable upon conversion of the Notes and
exercise of the Warrants shall be eligible for sale without restriction and without the need for
registration under any applicable federal or state securities laws; (ii) on each day during the
Equity Conditions Measuring Period, the Common Stock is designated for quotation on an Eligible
Market and shall not have been suspended from trading on such exchange or market (other than
suspensions of not more than two days and occurring prior to the applicable date of determination
due to business announcements by the Company) nor shall delisting or suspension by such exchange or
market have been threatened or pending either (A) in writing by such exchange or market or (B) by
falling below the minimum listing maintenance requirements of such exchange or market; (iii) during
the one year period ending on and including the date immediately preceding the applicable date of
determination, the Company shall have delivered Conversion Shares upon conversion of the Notes and
Warrant Shares upon exercise of the Warrants to the holders on a timely basis as set forth in
Section 3(c)(i) hereof (and analogous provisions under the Other Notes) and Section 1(a) of the
Warrants; (iv) during the Equity Conditions Measuring Period, the Company shall not have failed to
timely make any payments within five Business Days of when such payment is due pursuant to any
Transaction Document; (v) during the Equity Conditions Measuring Period, there shall not have
occurred either (A) the public announcement of a pending, proposed or intended Fundamental
Transaction which has not been abandoned, terminated or consummated or (B) an Event of Default or
an event that with the passage of time or giving of notice would constitute an Event of Default;
(vi) the Company shall have no knowledge of any fact that would cause (x) the Registration
Statements required pursuant to the Registration Rights Agreement not to be effective and available
for the resale of all remaining Registrable Securities in accordance with the terms of the
Registration Rights Agreement or (y) any shares of Common Stock issuable upon conversion of the
Notes and shares of Common Stock issuable upon exercise of the Warrants not to be eligible for sale
without restriction pursuant to Rule 144(k) and any applicable state securities laws; (vii) any
applicable shares of Common Stock to be issued in connection with such issuance may be issued in
full without violating or being restricted by Section 3(d) hereof; and (viii) the Company otherwise
shall have been in material compliance with and shall not have materially breached any provision,
covenant, representation or warranty of any Transaction Document.



                    (p) “Equity Conditions Failure” means, as applicable, that on any day during any period
commencing (i) six months prior to the delivery of the Make-Whole Election Notice through and
including the date of payment of the Make-Whole Amount or (ii) six months prior to the Redemption
Period End Day through and including the Optional Redemption Date, the Equity Conditions have not
been satisfied (or waived in writing by the Holder).



- 28 -









 





                    (q) “Equity Conditions Measuring Period” means any period commencing (i) six months prior to
the delivery of a Make-Whole Election Notice through and including the date of payment of the
applicable Make-Whole Amount or (ii) six months prior to a Redemption Period End Day through and
including the applicable Optional Redemption Date.



                    (r) “Excluded Securities” means any Common Stock issued or issuable: (i) in connection with
the conversion of the Company’s Class A Common Stock and Class B Common Stock into Common Stock
pursuant to the Company’s Certificate of Incorporation; (ii) in connection with mergers,
acquisitions, strategic business partnerships or joint ventures, in each case with non-affiliated
third parties and otherwise on an arm’s length basis, the primary purpose of which, in the
reasonable judgment of the Company’s Board of Directors, is not to raise additional capital; (iii)
in connection with the grant of options to purchase Common Stock or other stock-based awards or
sales, with exercise or purchase prices not less than the market price of the Common Stock on the
date of grant or issuance, which are issued or sold to employees, officers, directors or
consultants of the Company for the primary purpose of soliciting or retaining their employment or
service pursuant to an equity compensation plan approved by the Company’s Board of Directors, and
the Common Stock issued upon the exercise thereof; (iv) upon conversion of the Notes or the
exercise of the Warrants; (v) pursuant to, or upon conversion or exercise of any security issued as
part of, the Junior Financing, provided that the terms of such securities are not amended, modified
or changed on or after the Subscription Date without the consent of the Required Holders; or (vi)
upon conversion of any Options or Convertible Securities which are outstanding on the day
immediately preceding the Subscription Date and disclosed in Schedule 3(n) of the Securities
Purchase Agreement, provided that the terms of such Options or Convertible Securities are not
amended, modified or changed on or after the Subscription Date without the consent of the Required
Holders.



                    (s) “Fiscal Quarter” means each of the fiscal quarters adopted by the Company for financial
reporting purposes in accordance with GAAP.



                    (t) “Fundamental Transaction” means: (i) a transaction or series of related transactions
pursuant to which the Company: (A) sells, conveys or disposes of all or substantially all of its
assets determined on either a quantitative or qualitative basis (the presentation of any such
transaction for stockholder approval being conclusive evidence that such transaction involves the
sale of all or substantially all of the assets of the Company); (B) merges or consolidates with or
into, or engages in any other business combination with, any other person or entity, in any case
that results in the holders of the voting securities of the Company immediately prior to such
transaction holding or having the right to direct the voting of 50% or less of the total
outstanding voting securities of the Company or such other surviving or acquiring person or entity
immediately following such transaction; or (C) sells or issues, or any of its stockholders sells or
transfers, any securities to any person or entity, or the acquisition or right to acquire
securities by any person or entity, in either case acting individually or in concert with others,
such that, following the consummation of such transaction(s), such person(s) or entity(ies)
(together with their respective affiliates, as such term is used under Section 13(d) of the
Exchange Act) would own or have the right to acquire greater than 50% of the outstanding shares of
Common Stock (on a fully-diluted basis, assuming the full conversion, exercise or exchange of all
Purchase Rights then outstanding); (ii) any reclassification or change of the



- 29 -









 





outstanding shares of Common Stock (other than a change in par value, or from par value to no
par value, or from no par value to par value, or as a result of a subdivision or combination); or
(iii) any event, transaction or series of related transactions that results in individuals serving
on the Board of Directors on the date hereof (the “Incumbent Board”) ceasing for any reason to
constitute at least a majority of the Board of Directors; provided, however, that any individual
becoming a director subsequent to the date hereof whose appointment, election, or nomination for
election by the Company’s stockholders was approved by a vote of at least a two-thirds of the
directors then comprising the Incumbent Board (other than an appointment, election, or nomination
of an individual whose initial assumption of office is in connection with an actual or threatened
election contest relating to the election of the directors of the Company) shall be considered as
though such person were a member of the Incumbent Board.



                    (u) “GAAP” means United States generally accepted accounting principles, consistently applied.



                    (v) “Holder Pro Rata Amount” means a fraction (i) the numerator of which is the Principal
amount of this Note on the date of determination and (ii) the denominator of which is the aggregate
principal amount of all Notes issued to the initial purchasers pursuant to the Securities Purchase
Agreement on the date of determination.



                    (w) “Indebtedness” of any Person means, without duplication (i) all indebtedness for borrowed
money, (ii) all obligations issued, undertaken or assumed as the deferred purchase price of
property or services, including (without limitation) “capital leases” in accordance with generally
accepted accounting principles (other than trade payables entered into in the ordinary course of
business), (iii) all reimbursement or payment obligations with respect to letters of credit, surety
bonds and other similar instruments, (iv) all obligations evidenced by notes, bonds, debentures or
similar instruments, including obligations so evidenced incurred in connection with the acquisition
of property, assets or businesses, (v) all indebtedness created or arising under any conditional
sale or other title retention agreement, or incurred as financing, in either case with respect to
any property or assets acquired with the proceeds of such indebtedness (even though the rights and
remedies of the seller or bank under such agreement in the event of default are limited to
repossession or sale of such property), (vi) all monetary obligations under any leasing or similar
arrangement which, in connection with generally accepted accounting principles, consistently
applied for the periods covered thereby, is classified as a capital lease, (vii) all indebtedness
referred to in clauses (i) through (vi) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, lien,
pledge, charge, security interest or other encumbrance upon or in any property or assets (including
accounts and contract rights) owned by any Person, even though the Person which owns such assets or
property has not assumed or become liable for the payment of such indebtedness, and (viii) all
Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to
in clauses (i) through (vii) above.



                    (x) “Make-Whole Amount” means (i) if payable pursuant to Section 3(c)(ii), the Present Value
of Interest that would have accrued from the Conversion Date through the third anniversary of the
Issuance Date if the conversion had not occurred, and (ii) if payable pursuant to Section 4(b) or
8(a), the Present Value of Interest that would have accrued from the Redemption Date through the
Maturity Date.



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                    (y) “Make-Whole Conversion Price” means that price which shall be the lower of (i) the
applicable Conversion Price and (ii) the price computed as 95% of the arithmetic average of the
Weighted Average Price of the Common Stock during the five consecutive Trading Day period ending on
the Trading Day immediately preceding the applicable Share Delivery Date. All such determinations
to be appropriately adjusted for any stock split, stock dividend, stock combination or other
similar transaction during such period.



                    (z) “Options” means any rights, warrants or options to subscribe for or purchase shares of
Common Stock or Convertible Securities.



                    (aa) “Parent Entity” of a Person means an entity that, directly or indirectly, controls the
applicable Person and whose common stock or equivalent equity security is quoted or listed on an
Eligible Market, or, if there is more than one such Person or Parent Entity, the Person or Parent
Entity with the largest public market capitalization as of the date of consummation of the
Fundamental Transaction.



                    (bb) “Permitted Indebtedness” means (A) Senior Indebtedness, (B) unsecured Indebtedness
incurred by the Company that is made expressly subordinate in right of payment to the Indebtedness
evidenced by this Note, as reflected in a written agreement acceptable to the Holder and approved
by the Holder in writing, and which Indebtedness does not provide at any time for (1) the payment,
prepayment, repayment, repurchase or defeasance, directly or indirectly, of any principal or
premium, if any, thereon until 91 days after the Maturity Date or later and (2) total interest and
fees at a rate in excess of 15% per annum, (C) the obligations of the Company or its Subsidiaries
under any lease of real or personal property by such Person as lessee which is required under GAAP
to be capitalized on such Person’s balance sheet and (D) Indebtedness permitted by clause (v) of
the definition of “Permitted Lien.”



                    (cc) “Permitted Liens” means (i) any Lien for taxes not yet due or delinquent or being
contested in good faith by appropriate proceedings for which adequate reserves have been
established in accordance with GAAP, (ii) any statutory Lien arising in the ordinary course of
business by operation of law with respect to a liability that is not yet due or delinquent, (iii)
any Lien created by operation of law, such as materialmen’s liens, mechanics’ liens and other
similar liens, arising in the ordinary course of business with respect to a liability that is not
yet due or delinquent or that are being contested in good faith by appropriate proceedings, (iv)
any Lien incurred to secure Senior Indebtedness, (v) Liens securing the purchase price of assets
purchased or leased by the Company or Subsidiaries in the ordinary course of business; provided
that such Lien shall not extend to or cover any other property of the Company or its Subsidiaries,
provided that such liens do not exceed an aggregate value of $2,000,000, and (vi) Liens securing
the Company’s obligations under the Notes.



                    (dd) “Person” means an individual, a limited liability company, a partnership, a joint
venture, a corporation, a trust, an unincorporated organization, any other entity and a government
or any department or agency thereof.



                    (ee) “Present Value of Interest” means the amount of any interest that, but for a conversion
in accordance with Section 3(c)(ii) or redemption or conversion in accordance with Section 4(b) or
8(a), would have accrued under this Note at the Interest Rate for



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the period from the Conversion Date or Optional Redemption Date, as applicable, through the
third anniversary of the Issuance Date or the Maturity Date, respectively, discounted to the
present value of such interest using a discount rate equal to the applicable Treasury Yield.



                    (ff) “Prime Rate” means the rate of interest published in The Wall Street Journal (or if not
published in The Wall Street Journal, a similar publication chosen by the Required Holders and the
Company) from time to time as the Prime Rate.



                    (gg) “Principal Market” means the National Association of Securities Dealers, Inc.’s OTC
Bulletin Board.



                    (hh) “Redemption Notices” means, collectively, the Event of Default Redemption Notices, Change
of Control Redemption Notices and the Optional Redemption Notices and, each of the foregoing,
individually, a Redemption Notice.



                    (ii) “Redemption Prices” means, collectively, the Event of Default Redemption Price, Change of
Control Redemption Price and the Optional Redemption Price and, each of the foregoing,
individually, a Redemption Price.



                    (jj) “Required Holders” means the holders of Notes representing at least 66-2/3% of the
aggregate principal amount of the Notes then outstanding.



                    (kk) “SEC” means the United States Securities and Exchange Commission.



                    (ll) “Securities Purchase Agreement” means the Notes Securities Purchase Agreement dated as of
March 31, 2006 by and among the Global Employment Solutions, Inc. and the initial holders of the
Notes pursuant to which the Company issued the Notes.



                    (mm) “Senior Indebtedness” means the principal of (and premium, if any), interest on, and all
fees and other amounts (including, without limitation, any reasonable out-of-pocket costs,
enforcement expenses (including reasonable out-of-pocket legal fees and disbursements), collateral
protection expenses and other reimbursement or indemnity obligations relating thereto) payable by
Company under or in connection with the Credit Facility; provided, however, that
(1) the aggregate amount of the outstanding amount of the Revolving Advances (as defined in the
Credit Facility) made pursuant to Section 2.1 of the Credit Agreement, the outstanding Term Advance
(as defined in the Credit Agreement) and the outstanding L/C Amount (as defined in the Credit
Agreement) will not at any time exceed $20,000,000 as such amount is reduced from time to time by
principal payments of the portion of the Senior Indebtedness constituting term loans and permanent
reductions of the revolving commitments under the Credit Facility and (2) such Senior Indebtedness
affirmatively provides that it will at no time, respective of the base rate used, bear a rate of
interest per annum (including commitment and similar per annum fees) in excess of 12% per annum if
a fixed rate and 300 points above the Prime Rate per annum if a floating rate.



                    (nn) “Subscription Date” means March 31, 2006.



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                    (oo) “Successor Entity” means the Person, which may be the Company, formed by, resulting from
or surviving any Fundamental Transaction or the Person with which such Fundamental Transaction
shall have been made, provided that if such Person is not a publicly traded entity whose common
stock or equivalent equity security is quoted or listed for trading on an Eligible Market,
Successor Entity shall mean such Person’s Parent Entity.



                    (pp) “Trading Day” means any day on which trading the Common Stock is reported on the
Principal Market, or, if the Principal Market is not the principal trading market for the Common
Stock, then on the Eligible Market that is the principal securities exchange or securities market
on which the Common Stock is then traded; provided that “Trading Day” shall not include any day on
which the Common Stock is scheduled to trade on such exchange or market for less than 4.5 hours or
any day that the Common Stock is suspended from trading during the final hour of trading on such
exchange or market (or if such exchange or market does not designate in advance the closing time of
trading on such exchange or market, then during the hour ending at 4:00:00 p.m., New York Time).



                    (qq) “Treasury Yield” means the yield to maturity at the time of computation of United States
Treasury securities with a constant maturity (as compiled and published in the most recent Federal
Reserve Statistical Release H.15 (519) that has become publicly available at least two Business
Days prior to the applicable conversion or redemption date (or, if such Statistical Release is no
longer published, any publicly available source for similar market data)) most nearly equal to the
date of the interest payments for which the present value is being determined; provided, however,
that if the term to the date of the interest payments for which the present value is being
determined or to the Maturity Date is not equal to the constant maturity of a United States
Treasury security for which a weekly average yield is given, the Treasury Yield shall be obtained
by linear interpolation (calculated to the nearest one-twelfth of a year) from the weekly average
yields of United States Treasury securities for which such yields are given, except that if, in the
case of the Maturity Date, such date is less than one year, the weekly average yield on actually
traded United States Treasury securities adjusted to a constant maturity of one year shall be used.



                    (rr) “Voting Stock” of a Person means Capital Stock of such Person of the class or classes
pursuant to which the holders thereof have the general voting power to elect, or the general power
to appoint, at least a majority of the board of directors, managers or trustees of such Person
(irrespective of whether or not at the time Capital Stock of any other class or classes shall have
or might have voting power by reason of the happening of any contingency).



                    (ss) “Warrants” has the meaning ascribed to such term in the Securities Purchase Agreement,
and shall include all warrants issued in exchange therefor or replacement thereof.



                    (tt) “Weighted Average Price” means, for any security as of any date, the dollar
volume-weighted average price for such security on the Principal Market during the period beginning
at 9:30:01 a.m., New York Time (or such other time as the Principal Market publicly announces is
the official open of trading), and ending at 4:00:00 p.m., New York Time (or such other time as the
Principal Market publicly announces is the official close of trading) as reported by Bloomberg
through its “Volume at Price” functions, or, if the foregoing does not



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apply, the dollar volume-weighted average price of such security in the Eligible Market on
which the Common Stock is principally traded or the over-the-counter market on the electronic
bulletin board for such security during the period beginning at 9:30:01 a.m., New York Time (or
such other time as such market publicly announces is the official open of trading), and ending at
4:00:00 p.m., New York Time (or such other time as such market publicly announces is the official
close of trading) as reported by Bloomberg, or, if no dollar volume-weighted average price is
reported for such security by Bloomberg for such hours, the average of the highest closing bid
price and the lowest closing ask price of any of the market makers for such security as reported in
the “pink sheets” by Pink Sheets LLC (formerly the National Quotation Bureau, Inc.). If the
Weighted Average Price cannot be calculated for a security on a particular date on any of the
foregoing bases, the Weighted Average Price of such security on such date shall be the fair market
value as mutually determined by the Company and the Holder. If the Company and the Holder are
unable to agree upon the fair market value of such security, then such dispute shall be resolved
pursuant to Section 23. All such determinations to be appropriately adjusted for any stock
dividend, stock split, stock combination or other similar transaction during the applicable
calculation period.



               (29) DISCLOSURE. Except as provided otherwise herein, upon receipt or delivery by the
Company of any notice in accordance with the terms of this Note, unless the Company has in good
faith determined that the matters relating to such notice do not constitute material, nonpublic
information relating to the Company or its Subsidiaries, the Company shall within one Business Day
after any such receipt or delivery publicly disclose such material, nonpublic information on a
Current Report on Form 8-K or otherwise. In the event that the Company believes that a notice
contains material, nonpublic information, relating to the Company or its Subsidiaries, the Company
shall indicate to the Holder contemporaneously with delivery of such notice, and in the absence of
any such indication, the Holder shall be allowed to presume that all matters relating to such
notice do not constitute material, nonpublic information relating to the Company or its
Subsidiaries.



[Signature Page Follows]





- 34 -









 








               IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the Issuance
Date set out above.



	 	 	 	 	 	 	 
	 	 	GLOBAL EMPLOYMENT HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

	 	 
	 

	 	 	 	Name: Howard Brill	 	 
	 

	 	 	 	Title: Chief Executive Officer and President	 	 






 









 






EXHIBIT I




GLOBAL EMPLOYMENT HOLDINGS, INC.

CONVERSION NOTICE




Reference is made to the Senior Secured Convertible Note (the “Note”) issued to the undersigned by
Global Employment Holdings, Inc. (the “Company”). In accordance with and pursuant to the Note, the
undersigned hereby elects to convert the Conversion Amount (as defined in the Note) of the Note
indicated below into shares of Common Stock par value $.0001 per share (the “Common Stock”) of the
Company, as of the date specified below.



	 	 	 
	          Date of Conversion:

	 	 
	 

	 	 





	 	 	 
	          Aggregate Conversion Amount to be converted:

	 	 
	 

	 	 





Please confirm the following information:



	 	 	 
	          Conversion Price:

	 	 
	 

	 	 






	 	 	 
	          Number of shares of Common Stock to be issued:

	 	 
	 

	 	 





Please issue the Common Stock into which the Note is being converted in the
following name and to the following address:



	 	 	 
	          Issue to:

	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	 
	 
	 	 
	 

	 	 
	 

	 	 





	 	 	 
	          Facsimile Number:

	 	 
	 

	 	 





	 	 	 
	          Authorization:

	 	 
	 

	 	 





	 	 	 
	               By:

	 	 
	 

	 	 





	 	 	 
	                    Title:

	 	 
	 

	 	 





	 	 	 
	Dated:

	 	 
	 

	 	 





	 	 	 
	          Account Number:

	 	 
	 

	 	 
	          (if electronic book entry transfer)







	 	 	 
	          Transaction Code Number:

	 	 
	 

	 	 
	          (if electronic book entry transfer)







 









 






ACKNOWLEDGMENT




          The Company hereby acknowledges this Conversion Notice and hereby directs Corporate Stock
Transfer to issue the above indicated number of shares of Common Stock in accordance with the
Transfer Agent Instructions dated ___, 2006 from the Company and acknowledged and agreed
to by Corporate Stock Transfer.




	 	 	 	 	 	 	 
	 	 	GLOBAL EMPLOYMENT HOLDINGS, INC.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	 
 

	 	 
	 

	 	 	 	Name:	 	 
	 

	 	 	 	Title: