Exhibit 4.4


 


Form of Subordinated
Note


 


(FACE OF SECURITY)


 


[Each  Global Security shall bear substantially the following legend:


 


UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN DEFINITIVE REGISTERED FORM, THIS SECURITY MAY NOT BE TRANSFERRED
EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A
NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY. 
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY SECURITY
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]


 


[If the Security has
original issue discount for U.S. federal income tax purposes, insert tax
legend:


 


[FOR PURPOSES OF SECTIONS
1272, 1273, and 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (“THE
CODE”), THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE DISCOUNT.  THE AMOUNT OF ORIGINAL ISSUE DISCOUNT (AS
DEFINED IN SECTION 1273(A)(1) OF THE CODE AND TREASURY REGULATION SECTION 1.1273-1(A))
WITH RESPECT TO THIS SECURITY IS             ,
THE ISSUE DATE (AS DEFINED IN SECTION 1275(A)(2) OF THE CODE AND
TREASURY REGULATION SECTION 1.1273-2(A)(2)) OF THIS SECURITY IS               ,
THE ISSUE PRICE (AS DEFINED IN SECTION 1273(B) OF THE CODE AND
TREASURY REGULATION SECTION 1.1273-2(A)) OF THIS SECURITY IS               ,
AND THE YIELD TO MATURITY (AS DEFINED IN TREASURY REGULATION SECTION 1.1272-1(B))
OF THIS SECURITY IS               .] ]


 

















 


NETWORK ENGINES, INC.

[ Title of Security ]


 


	
  No. [       ]

  	
  CUSIP
  No.:    [       ]

  
	
   

  	
  [Common
  Code][ISIN]:    [       ]

  
	
   

  	
  [$    ]

  



 


NETWORK ENGINES, INC., a
Delaware corporation (“Issuer,” which term includes any successor corporation),
for value received promises to pay to [If the Security is a
Global Security -- CEDE & CO.][If the
Security is not a Global Security --                     ]
or registered assigns, the principal sum of                     
on                     ,        
(the “Maturity Date”) [If the Security is to bear
interest prior to maturity, insert--, and to pay interest thereon
from                           
or from the most recent interest payment date to which interest has been paid
or duly provided for, [semiannually in arrears
on             
and             
in each year], commencing                   ,
         (each, an “Interest
Payment Date”) at the rate of [      %
per annum], until the principal hereof is paid or made available for
payment [If applicable insert--, and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of       % per annum on any overdue
principal and on any overdue installment of interest].  The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Indenture (as defined below), be paid to the Holder in whose name this Security
(or one or more predecessor Securities) is registered at the close of business
on the record date for such interest, which shall be the               
or                 
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date (each, an “Interest Record Date”).  Interest will be computed on
the basis of [a 360-day year of twelve 30-day months].]


 


[If the Security is not to bear interest prior to
maturity, insert--The principal of this Security shall not bear
interest except in the case of a default in payment of principal upon
acceleration, upon redemption or at maturity and, in each such case, the
overdue principal of this Security shall bear interest at the rate of       %
per annum (to the extent that the payment of such interest shall be legally
enforceable), which shall accrue from the date of such default in payment to
the date payment of such principal has been made or duly provided for.  Interest on any overdue principal shall be
payable on demand.]


 


Reference
is made to the further provisions set forth on the reverse of this Security
contained herein, which will for all purposes have the same effect as if set
forth at this place.


 

















 


IN WITNESS WHEREOF,
the Issuer has caused this Security to be signed manually or by facsimile by
its duly authorized officer under its corporate seal.


 


	
   

  	
  NETWORK
  ENGINES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  
	
   

  	
   

  
	
  Attest:

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:

  	
   

  	
   

  	
   

  
	
  Name:

  	
   

  	
   

  	
   

  
	
  Title:

  	
   

  	
   

  	
   

  
									



 


 


This is one of the
Securities of the series designated herein and referred to in the
within-mentioned Indenture.


 


Dated:  [   ]


 


 


	
   

  	
  _______________, as
  Trustee

  
	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Title:

  	
   

  



 

















 


(REVERSE
OF SECURITY)


 


NETWORK
ENGINES, INC.


 


[
Title of Security ]


 


1.               Indenture.


 


This Security is one of a
duly authorized issue of debentures, notes or other evidence of indebtedness
(hereinafter called the “Securities”) of the Issuer of the series hereinafter
specified, which series is initially limited in aggregate principal amount to [$]                        ,
all of such Securities issued and to be issued under an Indenture dated as of                 ,
           (the “Indenture”)
between the Issuer and                                                     
as trustee (the “Trustee”).  Capitalized
terms herein are used as defined in the Indenture unless otherwise
indicated.  The terms of the Securities
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act of 1939, as in effect on the date of the
Indenture.  The Securities are subject to
all such terms, and Holders are referred to the Indenture and the Trust
Indenture Act for a statement of all such terms.  To the extent permitted by applicable law, in
the event of any inconsistency between the terms of this Security and the terms
of the Indenture, the terms of the Indenture shall control.


 


This Security is one of a
series of Securities designated pursuant to the Indenture [and an [Supplemental Indenture] dated           ,
          , issued
pursuant to Section 2.01 and Section 2.03 thereof (the “Supplement”)]
as                                 .  The Securities are general unsecured
obligations of the Issuer.  The Issuer
may, subject to the provisions of the Indenture and applicable law, issue
additional Securities of any series under the Indenture.


 


2.               Method of Payment.


 


The Issuer shall pay
interest on the Securities (except defaulted interest) to the persons who are
the registered Holders at the close of business on the Interest Record Date
immediately preceding the Interest Payment Date notwithstanding any transfer or
exchange of such Security subsequent to such Interest Record Date and prior to
such Interest Payment Date.  Holders must
surrender Securities to the Trustee to collect principal payments.  The Issuer shall pay Principal and interest
in money of [the United States] that at the
time of payment is legal tender for payment of public and private debts.  [However, the payments of interest, and any
portion of the Principal (other than interest payable at maturity or on any
redemption or repayment date or the final payment of Principal) shall be made
by the Paying Agent, upon receipt from the Issuer of immediately available
funds by                     
[a./p.m.], New York City time (or such
other time as may be agreed to between the Issuer and the Paying Agent or the
Issuer), directly to a Holder (by Federal funds wire transfer or otherwise) if
the Holder has delivered written instructions to the Trustee 15 days prior to
such payment date requesting that such payment will be so made and designating
the bank account to which such payments shall be so made and in the case of
payments of Principal surrenders the same to the Trustee in exchange for a
Security or Securities aggregating the same principal amount as the unredeemed
principal amount of the Securities surrendered.]


 

















 


3.                                       Redemption.


 


[The
Securities of this series may be redeemed at any time [on or after             ,
            ], as a whole or in part, at the option of the Issuer, upon mailing
notice of such redemption not less than 30 and not more than 60 days to the
Holders of such Securities, at a redemption price equal to                       .]


 


4.               Paying Agent and Security
Registrar.


 


Initially, the Trustee will
act as Paying Agent and Security Registrar.  The Issuer may change
any Paying Agent or Security Registrar without notice to the Holders.


 


5.               Denominations; Transfer;
Exchange.


 


The Securities are in
registered form, without coupons, in denominations of [$1,000]
and multiples of [$1,000].  A Holder shall register the transfer of or
exchange Securities in accordance with the Indenture.  The Issuer may require a Holder, among other
things, to furnish appropriate endorsements and transfer documents and to pay
certain transfer taxes or similar governmental charges payable in connection
therewith as permitted by the Indenture. 
[The Issuer need not register the transfer of or
exchange (a) any Securities for a period of fifteen (15) days preceding
the first mailing of notice that such Securities are to be redeemed, or (b) any
Securities selected, called or being called for redemption in whole or in part,
except, in the case of any Security to be redeemed in part, the portion thereof
not to be so redeemed.]


 


6.               Persons Deemed Owners.


 


The registered Holder of a
Security shall be treated as the owner of it for all purposes.


 


7.               Unclaimed Funds.


 


If funds for the payment of
principal or interest remain unclaimed for two years, the Trustee and the
Paying Agent will repay the funds to the Issuer.  After that, all liability of the Trustee and
such Paying Agent with respect to such funds shall cease.


 


8.               Defeasance.


 


The Indenture [as amended by the Supplement] contains provisions for
defeasance at any time of (a) the entire indebtedness of the Issuer on
this Security and (b) certain restrictive covenants and the related Events
of Default, upon compliance by the Issuer with certain conditions set forth
therein, which provisions [apply] to this
Security.


 


9.               Amendment; Supplement;
Waiver.


 


Subject to certain
exceptions, the Securities and the provisions of the Indenture relating to the
Securities may be amended or supplemented with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
then outstanding of all series affected by such amendment or supplement (voting
as one class), and any existing Default or Event of Default, other than the
non-payment of the principal amount of or interest on the


 


5

















 


Securities, or compliance
with certain provisions may be waived with the consent of the Holders of a
majority in aggregate principal amount of all the Securities of such series,
each series voting as a separate class, (or all of the Securities, as the case
may be, voting as a single class) then outstanding.  Without notice to or consent of any Holder,
the parties thereto may amend or supplement the Indenture and the Securities to,
among other things, cure any ambiguity, defect or inconsistency, provide for
uncertificated Securities in addition to or in place of certificated
Securities, or make any other change that does not adversely affect the rights
of any Holder of a Security.


 


10.         Defaults and Remedies.


 


If an Event of Default
(other than certain bankruptcy Events of Default with respect to the Issuer)
occurs and is continuing, the Trustee or the Holders of at least 25% in
aggregate principal amount of Securities of this series then outstanding
(voting as a separate class) by notice in writing to the Issuer (and also to
the Trustee if such notice is given by the Holders) may declare [the entire principal] of the Securities of this series and
the interest accrued thereon, if any, to be due and payable immediately in the
manner and with the effect provided in the Indenture.  If a bankruptcy Event of Default with respect
to the Issuer occurs and is continuing, then [the entire
principal] of the Securities then outstanding and interest accrued
thereon, if any, shall become due and payable immediately in the manner and
with the effect provided in the Indenture.  Holders of Securities may
not enforce the Indenture or the Securities except as provided in the
Indenture.  The Trustee is not obligated
to enforce the Indenture or the Securities unless it has received indemnity
satisfactory to it.  The Indenture
permits, subject to certain limitations therein provided, Holders of a majority
in aggregate principal amount of the Securities then outstanding to direct the
Trustee in its exercise of any trust or power. 
The Trustee may withhold from Holders of Securities notice of certain
continuing Defaults or Events of Default if it determines that withholding
notice is in their interest.


 


11.         Subordination.


 


Reference is made to the
Indenture, including, without limitation, provisions subordinating the payment
of principal of and premium, if any, and interest on the Securities to the
prior payment in full of all Senior Indebtedness as defined in the
Indenture.  Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.


 


12.         Trustee Dealings with
Issuer.


 


The Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Issuer as if it were not
the Trustee.


 


13.         No Recourse Against Others.


 


No stockholder, director,
officer, employee or incorporator, past, present or future as such, of the
Issuer or any predecessor or successor corporation thereof shall have any
liability for any obligation under the Securities or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation.  Each Holder of a Security by
accepting a Security


 


6

















 


waives and releases all such
liability.  The waiver and release are
part of the consideration for the issuance of the Securities.


 


14.         Authentication.


 


This Security shall not be
valid until the Trustee manually signs the certificate of authentication on
this Security.


 


15.         Abbreviations and Defined
Terms.


 


Customary abbreviations may
be used in the name of a Holder of a Security or an assignee, such as: TEN COM
(= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint
tenants with right of survivorship and not as tenants in common), CUST
(= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).


 


16.         CUSIP Numbers.


 


Pursuant to a recommendation
promulgated by the Committee on Uniform Security Identification Procedures, the
Issuer has caused CUSIP numbers to be printed on the Securities as a
convenience to the Holders of the Securities. 
No representation is made as to the accuracy of such numbers as printed
on the Securities and reliance may be placed only on the other identification
numbers printed hereon.


 


17.         Governing Law.


 


The laws of the State of New
York shall govern the Indenture and this Security thereof, and for all purposes
this Security shall be governed by and construed in accordance with the laws of
such State without regard to any principle of conflict of laws that would
require or permit the application of the laws of any other jurisdiction, except
as may otherwise be required by mandatory provisions of law.


 


7

















 


ASSIGNMENT
FORM


 


I or we assign and transfer
this Security to


 


	
   

  
	
  (Print or type name, address and zip code of assignee or transferee)

  
	
   

  
	
   

  
	
  (Insert Social Security or other identifying number of assignee or
  transferee)

  



 


 


and irrevocably appoint                                                                                              agent
to transfer this Security on the books of the Issuer.  The agent may
substitute another to act for him.


 


	
  Dated:

  	
   

  	
   

  	
  Signed:

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
  (Signed exactly as name
  appears on the other side of this Security)

  



 


 


Signature


	
  Guarantee:

  	
   

  	
   

  
	
   

  	
  Participant
  in a recognized Signature Guarantee Medallion Program (or other signature
  guarantor program reasonably acceptable to the Trustee)

  



 


8