exv4w1



 







EXHIBIT 4.1



NEITHER THIS SECURITY NOR THE ISSUANCE TO THE HOLDER OF THE SECURITIES INTO WHICH THIS SECURITY IS
CONVERTIBLE OR WHICH ARE ISSUABLE UPON REDEMPTION OF THIS SECURITY HAS BEEN REGISTERED WITH THE
SECURITIES AND EXCHANGE COMMISSION IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OF 1933, AS AMENDED (THE “1933 ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE 1933 ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
1933 ACT.



THIS NOTE DOES NOT REQUIRE PHYSICAL SURRENDER OF THIS NOTE IN THE EVENT OF A PARTIAL CONVERSION OR
REDEMPTION. AS A RESULT, FOLLOWING ANY CONVERSION OR REDEMPTION OF ANY PORTION OF THIS NOTE, THE
OUTSTANDING PRINCIPAL AMOUNT REPRESENTED BY THIS NOTE MAY BE LESS THAN THE PRINCIPAL AMOUNT STATED
ON THE FACE OF THIS NOTE.




AMENDED AND RESTATED

CONVERTIBLE NOTE DUE 2005-2008



OF



ZIX CORPORATION




			
	 	 	 
	No. ___
	 	$10,000,000.00
	Dated ___, 2005
	 	New York, New York






          FOR VALUE RECEIVED, ZIX CORPORATION, a Texas corporation (the “Company”), hereby promises to
pay to or upon the order of [NAME OF REGISTERED HOLDER], or its registered assigns or
successors-in-interest (the “Holder”), the principal sum of Ten Million Dollars ($10,000,000.00),
in installments on the Installment Maturity Dates and on the Final Maturity Date, and to pay
interest thereon at the Applicable Rate from the date hereof on the Interest Payment Dates until
the same becomes due and payable, whether at maturity or upon acceleration or by redemption or
repurchase in accordance with the terms hereof, or otherwise. Interest on this Note shall be
computed on the basis
of a 360-day year of 30-day months and actual days elapsed. Unless otherwise





 









 







determined by the
Holder or required by applicable law, payments will be applied first to any unpaid collection
costs, then to unpaid interest and fees and any remaining amount to unpaid principal.




          All payments of principal of and interest on this Note shall be made in lawful money of the
United States of America or, as required by Section 2(d) and subject to the provisions of this
Note, principal of this Note shall be redeemed through issuance of shares of Common Stock in
accordance with Section 2(c), and interest payable on the Interest Payment Dates may be paid in
whole or in part in fully paid and nonassessable shares of Common Stock. All cash payments by the
Company shall be made by wire transfer of immediately available funds to such account as the Holder
may from time to time designate by written notice in accordance with the provisions of this Note.
This Note may not be prepaid in whole or in part except as specifically provided herein. Whenever
any amount expressed to be due by the terms of this Note is due on any day which is not a Business
Day (as defined below), the same shall instead be due on the next succeeding day which is a
Business Day and, in the case of any Interest Payment Date that 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 in
determining the amount of interest due on such date.




          The obligations of the Company under this Note shall rank in right of payment on parity with
all other unsubordinated obligations of the Company for indebtedness for borrowed money or the
purchase price of property. This Note is issued pursuant to the Purchase Agreement and the Holder
of this Note and this Note are subject to the terms and entitled to the benefits of the Purchase
Agreement. Payment and performance of the Company’s obligations under this Note and the other
Transaction Documents is secured pursuant to the Security Agreement.




          This Note amends and restates a Convertible Note due 2005-2008 issued on the Issuance Date
pursuant to the Purchase Agreement. This Note is one of a duly authorized issue of the Company’s
Amended and Restated Convertible Notes due 2005-2008 limited to an aggregate principal amount of
$20,000,000 (excluding Amended and Restated Convertible Notes due 2005-2008 issued in replacement
of lost, stolen, destroyed or mutilated notes or issued on transfer of such notes).




          The following terms and conditions shall apply to this Note:




          Section 1. Definitions.




          (a) Capitalized terms used herein and not otherwise defined herein shall have the meanings set
forth in the Purchase Agreement.




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          (b) All the agreements or instruments herein defined shall mean such agreements or instruments
as the same may from time to time be supplemented or amended or the terms thereof waived or
modified to the extent permitted by, and in accordance with, the terms thereof and of this Note.




          (c) For purposes hereof the following terms shall have the meanings ascribed to them below:




          “Acquisition Transaction” means a transaction in which the Company acquires another business
or its tangible or intangible assets.




          “Affiliate” means, with respect to any Person, any other Person that directly, or indirectly
through one or more intermediaries, controls, is controlled by or is under common control with the
subject Person. For purposes of this definition, “control” (including, with correlative meaning,
the terms “controlled by” and “under common control with”), as used with respect to any Person,
shall mean the possession, directly or indirectly, of the power to direct or cause the direction of
the management and policies of such Person, whether through the ownership of voting securities or
by contract or otherwise.




          “Aggregation Party” means a person whose beneficial ownership of Common Stock would be
aggregated with the beneficial ownership of Common Stock by the Holder for purposes of determining
whether a “group” exists or for purposes of determining the Holder’s beneficial ownership of Common
Stock for purposes of Section 13(d) of the 1934 Act and Regulation 13D-G thereunder.




          “Allocated Redemption Percentage” means with respect to a particular Share Redemption the
product obtained by multiplying 20 percent by a fraction, of which the numerator is the original
principal amount of the principal installment of this Note that is being redeemed in such Share
Redemption, as identified in the applicable Share Redemption Notice, and the denominator is the
aggregate original principal amount of the principal installments of this Note and the Other Note
being redeemed in, or contemporaneously with, such Share Redemption, as identified in the
applicable Share Redemption Notice and the applicable notice given to the holder of the Other Note;
provided however, that if all of the outstanding principal amount of such installment of principal
of this Note is being redeemed in such Share Redemption, as identified in the applicable Share
Redemption Notice, and less than all of the outstanding principal amount of such principal
installment of the Other Note is being redeemed contemporaneously with such Share Redemption, as
identified in the applicable notice given to the holder of the Other Note, then the Allocated
Redemption Percentage of this Note shall be the product obtained by multiplying 20 percent by a
fraction, of which the numerator is the principal amount of such installment of this Note being
redeemed in such Share
Redemption, as identified in the applicable Share Redemption Notice, and the





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denominator is the
aggregate principal amount of such principal installments of this Note and the Other Note being
redeemed in or contemporaneously with such Share Redemption, as identified in the applicable Share
Redemption Notice and the applicable notice given to the holder of the Other Note (and the
Allocated Redemption Percentage shall be analogously determined if less than all of such principal
installment of this Note and all of such principal installment of the Other Note are being redeemed
contemporaneously with such Share Redemption, as so identified in such notices).




          “AMEX” means the American Stock Exchange, Inc.




          “Applicable Rate” means for each Interest Period a rate per annum equal to LIBOR for such
Interest Period, plus three percent (or such lesser rate as shall be the highest rate permitted by
applicable law) or, if an Event of Default shall occur, then so long as any Event of Default shall
continue, the Default Rate.




          “Board of Directors” means the Board of Directors of the Company.




          “Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors, or duly authorized
committee thereof (to the extent permitted by applicable law), and to be in full force and effect
on the date of such certification, and delivered to the Holder.




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




          “Cash and Cash Equivalents Balances” of any Person on any date shall be determined on an
unconsolidated basis from such Person’s books maintained in accordance with Generally Accepted
Accounting Principles, and means, without duplication, the sum of (1) the cash held by such Person
on such date and available for use by such Person on such date, (2) all assets which would, on a
balance sheet of such Person prepared as of such date in accordance with Generally Accepted
Accounting Principles, be classified as cash equivalents; provided, however, that (x) for purposes
of computing the Cash and Cash Equivalents Balances as of any date, no amount shall be included as
cash or a cash equivalent if such amount is subject to any lien, charge, equity or encumbrance in
favor of any other Person or is subject to any agreement, arrangement or understanding by the
Company with any other Person to maintain the amount thereof or which restricts the use thereof by
the Company (in any such case, other than as provided in Section 3(m) of this Note and the Other
Note and other than the lien and security interest in favor of the Collateral Agent arising under
the Security Agreement) and (y) cash and cash
equivalents described in the preceding clauses (1) and (2) that are held at any time





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as Collateral
under the Security Agreement and in which the Collateral Agent has a perfected first priority
security interest and which are not subject to any lien, charge, equity or encumbrance in favor of
any other Person shall be included in determining the amount of Cash and Cash Equivalents Balances
at such time.




          “Closing Date” shall have the meaning provided in the Purchase Agreement.




          “Collateral Agent” means Law Offices of Brian W Pusch, as collateral agent pursuant to the
Security Agreement, and from time to time its duly appointed and acting successor or successors.




          “Common Stock” means the Common Stock, $0.01 par value, or any shares of capital stock of the
Company into which such shares shall be changed or reclassified after the Closing Date.




          “Common Stock Equivalent” means any warrant, option, subscription or purchase right with
respect to shares of Common Stock, any security convertible into, exchangeable for, or otherwise
entitling the holder thereof to acquire, shares of Common Stock or any warrant, option,
subscription or purchase right with respect to any such convertible, exchangeable or other
security.




          “Company Certificate” means a certificate of the Company signed by an Officer.




          “Company Conversion Date” means the conversion date set forth in the Company Conversion Notice
and selected by the Company in accordance with Section 6(d)(2).




          “Company Conversion Notice” means a Company Conversion Notice in the form attached hereto as
Exhibit F.




          “Company Notice” means a Company Notice in the form attached as Exhibit C.




          “Computed Price” means, with respect to a particular Trading Day in the Share Redemption
Computation Period for a particular Share Redemption, 90 percent of the VWAP of the Common Stock
for such Trading Day.





          “Conversion Date” means the date on which a Conversion Notice is given in accordance with
Section 6(b)(1).




          “Conversion Delay Payments” shall have the meaning provided in
Section 6(b)(5)(C).





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          “Conversion Notice” means a duly executed Notice of Conversion of Amended and Restated
Convertible Note due 2005-2008 substantially in the form of Exhibit A to this Note.




          “Conversion Price” means $6.00, subject to adjustment as provided in Section 6(c).




          “Current Market Price” shall mean the arithmetic average of the daily Market Prices per share
of Common Stock for the ten consecutive Trading Days immediately prior to the date in question;
provided, however, that





     (1) if the “ex” date (as hereinafter defined) for any event (other than the issuance or
distribution requiring such computation) that requires an adjustment to the Conversion Price
pursuant to Section 6(c)(1), (2), (3), (4), (5), (6), or (7), occurs during such ten
consecutive Trading Days, the Market Price for each Trading Day prior to the “ex” date for
such other event shall be adjusted by multiplying such Market Price by the same fraction by
which the Conversion Price is so required to be adjusted as a result of such other event,




     (2) if the “ex” date for any event (other than the issuance or distribution requiring
such computation) that requires an adjustment to the Conversion Price pursuant to Section
6(c)(1), (2), (3), (4), (5), (6), or (7), occurs on or after the “ex” date for the issuance
or distribution requiring such computation and prior to the day in question, the Market
Price for each Trading Day on and after the “ex” date for such other event shall be adjusted
by multiplying such Market Price by the reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such other event, and




     (3) if the “ex” date for the issuance or distribution requiring such computation is
prior to the day in question, after taking into account any adjustment required pursuant to
clause (1) or (2) of this proviso, the Market Price for each Trading Day on or after such
“ex” date shall be adjusted by adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner consistent with any determination
of such value for purposes of Section 6(c)(4) or (6), whose determination shall be
conclusive and described in a Board Resolution) of the evidences of indebtedness, shares of
capital stock or assets being distributed applicable to one share of Common Stock as of the
close of business on the day before such “ex” date.


For purposes of any computation under Section 6(c)(4), the Current Market Price of
the Common Stock on any date shall be deemed to be the arithmetic average of the






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daily Market
Prices per share of Common Stock for such day and the next two succeeding Trading Days; provided,
however, that if the “ex” date for any event (other than the Tender Offer requiring such
computation) that requires an adjustment to the Conversion Price pursuant to Section 6(c)(1), (2),
(3), (4), (5), (6), or (7), occurs on or after the Expiration Time for the Tender Offer requiring
such computation and prior to the day in question, the Market Price for each Trading Day on and
after the “ex” date for such other event shall be adjusted by multiplying such Market Price by the
reciprocal of the fraction by which the Conversion Price is so required to be adjusted as a result
of such other event. For purposes of this paragraph and the definition of the term “VWAP”, the term
“ex” date, (1) when used with respect to any issuance or distribution, means the first date on
which the Common Stock trades, regular way, on the relevant exchange or in the relevant market from
which the Market Price was obtained without the right to receive such issuance or distribution, (2)
when used with respect to any subdivision or combination of shares of Common Stock, means the first
date on which the Common Stock trades, regular way, on such exchange or in such market after the
time at which such subdivision or combination becomes effective, and (3) when used with respect to
any Tender Offer means the first date on which the Common Stock trades, regular way, on such
exchange or in such market after the Expiration Time of such Tender Offer. Notwithstanding the
foregoing, whenever successive adjustments to the Conversion Price are called for pursuant to
Section 6(c), such adjustments shall be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of Section 6(c) and to avoid unjust or inequitable results as
determined in good faith by the Board of Directors.




          “Default Rate” means 16 percent per annum (or such lesser rate as shall be the highest rate
permitted by applicable law).




          “DTC” means The Depository Trust Company.




          “DWAC” means DTC’s Deposit Withdrawal Agent Commission system.




          “Effective Date” means the date on which a Registration Statement covering all the Underlying
Shares and other Registrable Securities (as defined in the Registration Rights Agreement) is first
declared effective by the SEC.




          “Eligible Bank” means a corporation organized or existing under the laws of the United States
or any other state, having combined capital and surplus of at least $250 million and subject to
supervision by federal or state authority and which has a branch located in New York, New York.




          “Event of Default” shall have the meaning provided in Section 4(a).




          “Exchange Act” means the Securities Exchange Act of 1934, as





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amended.




          “Excluded Shares” means securities or rights to acquire securities that entitle the holder or
owner to acquire shares of Common Stock and that have limitations on the holder’s or owner’s right
to convert, exercise or purchase similar to the limitations in Section 6(h).




          “Extended Company Conversion Date” means with respect to any portion of this Note to which
Section 6(d)(3)(A) applies, the date that is 30 Trading Days after the latest date on which the
Restricted Ownership Percentage no longer restricts the Holder’s right to convert the remaining
Inconvertible Portion, but in no event later than the date that is 90 days after the Final Maturity
Date.




          “Expiration Time” shall have the meaning provided in Section 6(c)(6).




          “FAST” means DTC’s Fast Automated Securities Transfer program.




          “Final Maturity Date” means November 2, 2008.




          “Fundamental Change” means





     (a) Any consolidation or merger of the Company or any material Subsidiary with or into
another entity (other than a merger or consolidation of a Subsidiary into the Company or a
wholly-owned Subsidiary) where the stockholders of the Company immediately prior to such
transaction do not collectively own at least 51% of the outstanding voting securities of the
surviving corporation of such consolidation or merger immediately following such
transaction;




     (b) The sale of (i) all or substantially all of the assets of the Company and the
Subsidiaries in a single transaction or a series of transactions or (ii) one or more
Subsidiaries or the assets of one or more Subsidiaries which sale individually or in the
aggregate is material to the Company and the subsidiaries taken as a whole, in the case of
the preceding clause (ii) other than any such sale or sales which individually or in the
aggregate could not reasonably be expected to have a material adverse effect on (i) the
business, properties, operations, condition (financial or other), results of operation or
financial prospects of the Company and the Subsidiaries, taken as a whole, (ii) the validity
or enforceability of, or the ability of the Company to perform its obligations under, the
Transaction Documents; (iii) the rights and remedies of the Holder under the terms of the
Transaction Documents; or (iv) the Collateral or the first priority perfected security
interest in the Collateral granted to the Collateral Agent pursuant to
the Security Agreement;



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     (c) The occurrence of any transaction or event in connection with which all or
substantially all the Common Stock shall be exchanged for, converted into, acquired for or
constitute the right to receive consideration (whether by means of an exchange offer,
liquidation, tender offer, consolidation, merger, combination, reclassification,
recapitalization or otherwise) which is not all or substantially all capital stock which is
(or will, upon consummation of or immediately following such transaction or event, will be)
listed on a registered national securities exchange or approved for quotation on Nasdaq or
any similar United States system of automated dissemination of transaction reporting of
securities prices; or




     (d) The acquisition by a Person or entity or group of Persons or entities acting in
concert as a partnership, limited partnership, syndicate or group (as that term is defined
for purposes of Section 13(d) of the 1934 Act and Regulation 13D-G thereunder), as a result
of a tender or exchange offer, open market purchases, privately negotiated purchases or
otherwise, of beneficial ownership of securities of the Company representing 50% or more of
the combined voting power of the outstanding voting securities of the Company ordinarily
(and apart from rights accruing in special circumstances) having the right to vote in the
election of directors.



          “Holder Notice” means a Holder Notice in the form attached as Exhibit D.




          “Inconvertible Portion” shall have the meaning provided in Section 6(d)(3).




          “Indebtedness” means, when used with respect to any Person, without duplication:





     (1) all indebtedness, obligations and other liabilities (contingent or otherwise) of
such Person for borrowed money (including obligations of such Person in respect of
overdrafts, foreign exchange contracts, currency exchange agreements, currency purchase or
similar agreements, Interest Rate Protection Agreements, and any loans or advances from
banks, whether or not evidenced by notes or similar instruments) or evidenced by bonds,
debentures, notes or other instruments for the payment of money, or incurred in connection
with the acquisition of any property, services or assets (whether or not the recourse of the
lender is to the whole of the assets of such Person or to only a portion thereof), other
than any account payable or other accrued current liability or obligation to trade creditors
incurred in the ordinary course of business in connection with the obtaining of materials or
services;



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     (2) all reimbursement obligations and other liabilities (contingent or otherwise) of
such Person with respect to letters of credit, bank guarantees, bankers’ acceptances, surety
bonds, performance bonds or other guaranty of contractual performance;




     (3) all obligations and liabilities (contingent or otherwise) in respect of (a) leases
of such Person required, in conformity with generally accepted accounting principles, to be
accounted for as capitalized lease obligations on the balance sheet of such Person and (b)
any lease or related documents (including a purchase agreement) in connection with the lease
of real property which provides that such Person is contractually obligated to purchase or
cause a third party to purchase the leased property and thereby guarantee a minimum residual
value of the leased property to the landlord and the obligations of such Person under such
lease or related document to purchase or to cause a third party to purchase the leased
property;




     (4) all direct or indirect guaranties or similar agreements by such Person in respect
of, and obligations or liabilities (contingent or otherwise) of such Person to purchase or
otherwise acquire or otherwise assure a creditor against loss in respect of, indebtedness,
obligations or liabilities of another Person of the kind described in clauses (1) through
(3);




     (5) any indebtedness or other obligations described in clauses (1) through (4) secured
by any mortgage, pledge, lien or other encumbrance existing on property which is owned or
held by such Person, regardless of whether the indebtedness or other obligation secured
thereby shall be payable by or shall have been assumed by such Person; and




     (6) any and all deferrals, renewals, extensions and refundings of, or amendments,
modifications or supplements to, any indebtedness, obligation or liability of the kind
described in clauses (1) through (5).



          “Installment Maturity Dates” mean November 2, 2005, November 2, 2006 and November 2, 2007.




          “Interest Payment Date” means each February 1, May 1, August 1 and November 1, commencing on
the first such date after the Issuance Date, and the Final Maturity Date.




          “Interest Payment Shares” means the shares of Common Stock issuable in payment of interest on
this Note in accordance with Section 2(a).




          “Interest Period” means with respect to any outstanding principal of
this Note,





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     (1) initially the period commencing on the Issuance Date and ending on the date that is
six months thereafter; and




     (2) thereafter each period commencing on the last day of the next preceding Interest
Period and ending six months thereafter;


provided that, all of the foregoing provisions relating to Interest Periods are subject to the
limitation that any Interest Period for any installment of principal that would otherwise extend
beyond the Installment Maturity Date or the Final Maturity Date, as the case may be, for such
installment shall end on such Installment Maturity Date or the Final Maturity Date, as the case may
be.




          “Interest Rate Protection Agreement” means, with respect to any Person, any interest rate swap
agreement, interest rate cap or collar agreement or other financial agreement or arrangement
designed to protect such Person against fluctuations in interest rates, as in effect from time to
time.




          “Interest Share Price” means for any Interest Payment Date an amount equal to 90 percent of
the arithmetic average of the daily VWAPs of the Common Stock for all of the Trading Days during
the period of ten consecutive Trading Days ending on and including the Trading Day immediately
preceding such Interest Payment Date.




          “Issuance Date” means the “Closing Date” as defined in the Purchase Agreement.




          “LIBOR” means, with respect to each Interest Period, the six month London Interbank Offered
Rate at 11:00 a.m., London time, on the date that is two London banking days before the first day
of such Interest Period, as reported by Bloomberg Financial L.P., using the BBAM function and the
Official BBA LIBOR quote shown thereby.




          “Majority Holders” means at any time, the holders of two-thirds of the aggregate outstanding
principal amount of this Note and the Other Note.




          “Market Price” with respect to any security on any day shall mean the closing bid price of
such security on such day on the Nasdaq, the NYSE or the AMEX, as applicable, or, if such security
is not listed or admitted to trading on the Nasdaq, the NYSE or the AMEX, on the principal national
securities exchange or quotation system on which such security is quoted or listed or admitted to
trading, in any such case as reported by Bloomberg, L.P. (or if such source ceases to be available,
comparable source selected by the Majority Holders and acceptable to the
Company in its reasonable judgment) or, if not quoted or listed or admitted to





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trading on any
national securities exchange or quotation system, the average of the closing bid and asked prices
of such security on the over-the-counter market on the day in question, as reported by the National
Quotation Bureau, Incorporated, or a similar generally accepted reporting service, or if not so
available, in such manner as furnished by any NYSE member firm selected from time to time by the
Board of Directors for that purpose, or a price determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a Board Resolution.




          “Maximum Share Amount Deficiency” shall have the meaning provided in the Purchase Agreement.




          “1934 Act” means the Securities Exchange Act of 1934, as amended.




          “1933 Act” means the Securities Act of 1933, as amended.






          “Nasdaq” means the Nasdaq National Market.



          “Newly Issued Shares” shall have the meaning provided in Section 6(c)(7)(A).




          “Note” means this instrument as originally executed, or if later amended or supplemented in
accordance with its terms, then as so amended or supplemented.




          “NYSE” means the New York Stock Exchange, Inc.




          “Officer” means the Chairman of the Board, the Chief Executive Officer, the President or the
Chief Financial Officer of the Company.




          “Optional Redemption Consideration” means (1) an amount in cash equal to the sum of (A) an
amount equal to 105 percent of the principal amount of this Note that is outstanding on the
applicable Optional Redemption Date plus (B) accrued and unpaid interest on such principal amount
to the applicable Optional Redemption Date plus (C) accrued and unpaid interest, if any, at the
Default Rate on the amount referred to in the immediately preceding clause (B) to the applicable
Optional Redemption Date and (2) a Redemption Warrant that initially (I) entitles the holder
thereof to purchase a number of shares of Common Stock equal to 70 percent of the quotient obtained
by dividing (x) the principal amount of this Note outstanding immediately prior to redemption of
this Note on the applicable Optional Redemption Date by (y) the Conversion Price in effect
immediately prior to redemption of this Note on the applicable Optional Redemption Date and (II)
has a Purchase Price (as defined in the Redemption Warrant) equal to the Conversion Price in effect
immediately prior to redemption of this Note on the applicable
Optional Redemption Date, subject to adjustment as provided in the Redemption





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Warrant.




          “Optional Redemption Date” means, with respect to a particular redemption of this Note or a
portion hereof under Section 2(b), the Business Day, selected by the Company in accordance with
Section 2(b), on which this Note or such portion hereof is to be redeemed pursuant to Section 2(b).




          “Optional Redemption Notice” means an Optional Redemption Notice in the form attached hereto
as Exhibit B.




          “Optional Redemption Period” means the period that commences on the date that is ten Trading
Days after the Effective Date and ends on the Final Maturity Date.




          “Other Note” means the Amended and Restated Convertible Note due 2005-2008 issued by the
Company upon amendment and restatement of the Company’s Convertible Note due 2005-2008 originally
issued pursuant to the Other Purchase Agreement, and any or all such instruments issued upon
transfer or split-up thereof.




          “Other Purchase Agreement” means the Purchase Agreement, dated as of November 1, 2004, by and
between the Company and the original holder of the Other Note or its predecessor instrument.




          “Other Redemption Warrants” means any Common Stock Purchase Warrants issuable or issued by the
Company upon optional redemption of the Other Note pursuant to Section 2(b) thereof.




          “Permitted Indebtedness” means:





     (1) Indebtedness outstanding on the Issuance Date prior to issuance of this Note and
reflected in the Company’s financial statements included in the SEC Filings;




     (2) Indebtedness evidenced by this Note and the Other Note;




     (3) Indebtedness outstanding on, or incurred after, the Issuance Date in an aggregate
amount not to exceed $5 million at any one time outstanding so long as (A) such Indebtedness
(x) is incurred for the purpose of acquiring equipment owned or used or to be owned or used
by the Company or any Subsidiary (or for the purpose of acquiring the capital stock or
similar equity interests of a Subsidiary that is formed for the limited purpose of owning
same and does not own or hold any other material assets) and does
not exceed the purchase price of the equipment, capital stock or other equity



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interest so
acquired plus reasonable transaction expenses and (y) if secured, is secured solely by the
interest of the Company or one of its Subsidiaries in the equipment so acquired and rights
related thereto or (B) is the reimbursement obligations and other liabilities (contingent or
otherwise) of the Company or any Subsidiary with respect to letters of credit issued in lieu
of cash security deposits for leases of real property or equipment used by the Company or
any Subsidiary, or commercial or standby letters of credit issued in the ordinary course of
the business of the Company and its Subsidiaries (the amount of which shall for this purpose
be deemed to be the maximum reimbursement obligations and other liabilities (contingent or
otherwise) with respect to such letters of credit, whether or not a drawing thereunder has
been made);




     (4) Indebtedness incurred after the Issuance Date that is unsecured and that is
subordinated as to payment to the Indebtedness evidenced by this Note and the Other Note on
terms that have been approved in writing by the Majority Holders before the incurrence of
such Indebtedness;




     (5) endorsements for collection or deposit in the ordinary course of business; and




     (6) in the case of any Subsidiary, Indebtedness owed by such Subsidiary to the Company.



          “Person” means any natural person, corporation, partnership, limited liability company, trust,
incorporated organization, unincorporated association or similar entity or any government,
governmental agency or political subdivision.




          “Principal Market” means at any time Nasdaq or such other U.S. market or exchange which is the
principal market on which the Common Stock is then listed for trading.




          “Purchase Agreement” means the Purchase Agreement, dated as of November 1, 2004, by and
between the Company and the original holder of this Note or its predecessor instrument, pursuant to
which this Note, or its predecessor instrument was originally issued, as amended by the Purchase
Agreement Amendment.




          “Purchase Agreement Amendment” means Amendment No. 1 to Purchase Agreement, dated as of April
___, 2005, by and between the Company and the original holder of the Convertible Promissory Note
due 2005-2008 that was amended and restated by this Note or this Note’s predecessor instrument.




          “QIB” means a “qualified institutional buyer” as defined in Rule 144A.





-14-









 








          “Record Date” shall mean, with respect to any dividend, distribution or other transaction or
event in which the holders of Common Stock have the right to receive any cash, securities or other
property or in which the Common Stock (or other applicable security) is exchanged for or converted
into any combination of cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property (whether such date is
fixed by the Board of Directors or by statute, contract or otherwise).




          “Redemption Delay Payments” shall have the meaning provided in Section 2(c)(6)(C).




          “Redemption Warrant” means any Common Stock Purchase Warrant in the form attached as Exhibit E
issuable or issued as part of the Optional Redemption Consideration.




          “Registration Statement” shall have the meaning set forth in the Registration Rights
Agreement.




          “Repurchase Event” means the occurrence of any one or more of the following events:





     (a) For any period of five consecutive Trading Days following the date hereof there
shall be no reported sale price of the Common Stock on any of Nasdaq, the NYSE or the AMEX;




     (b) The Common Stock ceases to be listed for trading on Nasdaq, the NYSE or the AMEX
for a period of five consecutive Trading Days;




     (c) Any Fundamental Change;




     (d) The adoption of any amendment to the Company’s Articles of Incorporation (other
than any certificate designating a series of preferred stock of the Company) which
materially and adversely affects the rights of the Holder or the taking of any other action
by the Company which materially and adversely affects the rights of the Holder in respect of
the Holder’s interest in the Common Stock in a different and more adverse manner than it
affects the rights of holders of Common Stock generally;




     (e) The inability of the Holder or holders of any Other Note for 30 Trading Days
(whether or not consecutive) during any period of 365 consecutive days occurring on or after
the SEC Effective Date to sell shares of Common Stock issued or issuable upon conversion of
this Note or the Other
Note or exercise of the Warrants or issued as Interest Payment Shares



-15-









 






pursuant to the
Registration Statement (1) by reason of the requirements of the 1933 Act, the 1934 Act or
any of the rules or regulations under either thereof or (2) due to the Registration
Statement containing any untrue statement of material fact or omitting to state a material
fact required to be stated therein or necessary to make the statements therein not
misleading or other failure of the Registration Statement to comply with the rules and
regulations of the SEC, excluding any such inability to sell that results from an untrue
statement of a material fact in such Registration Statement or Prospectus or omission to
state a material fact required to be stated in such Registration Statement or Prospectus in
order to make the statements therein not misleading, which misstatement or omission was made
by the Holder in written information it furnished to the Company specifically for inclusion
in such Registration Statement or Prospectus which such information was substantially relied
upon by the Company in preparation of the Registration Statement or Prospectus or any
amendment or supplement thereto, unless the Company shall have failed timely to amend or
supplement such Registration Statement or Prospectus after the Holder shall have corrected
such misstatement or omission; or




     (f) The Registration Statement required by Section 2(a)(i) of the Registration Rights
Agreement is not declared effective by the SEC within 95 days (or 125 days if the SEC staff
determines to review such Registration Statement) following the Closing Date, or the
Registration Statement required by Section 2(a)(ii) of the Registration Rights Agreement is
not declared effective by the SEC within 95 days (or 125 days if the SEC staff determines to
review such Registration Statement) following demand of the Holder pursuant to the
Registration Rights Agreement.



          “Repurchase Price” means with respect to any repurchase pursuant to Section 5 an amount in
cash equal to the greater of (1) the sum of (A) the outstanding principal amount of this Note that
the Holder has elected to be repurchased plus (B) accrued and unpaid interest on such principal
amount to the date of such repurchase plus (C) accrued and unpaid interest, if any, at the Default
Rate on the amount referred to in the immediately preceding clause (B) to the date of such
repurchase and (2) the product obtained by multiplying (A) the Current Market Price on the date the
Repurchase Event occurs, the date the Company gives the Company Notice to the Holder, the date the
Holder gives the Holder Notice to the Company or the applicable repurchase date pursuant to Section
5, whichever such Current Market Price is the highest, times (B) the number of shares of Common
Stock which would be issuable upon conversion of the principal amount of this Note (and interest
thereon as provided in Section 6(a)) to be repurchased by reason of the occurrence of such
Repurchase Event (determined without regard to any limitation on conversion contained in Section 6)
if such conversion were made
on the date for which, pursuant to the immediately preceding clause (A), the





-16-









 







Current Market Price
is used for the computation of the Repurchase Price pursuant to this clause (2).




          “Required Cash Amount” means for any date the amount set forth below with respect to such
date:




	 	 	 	 	 
	Date	 	Amount
	Issuance Date through November 2, 2007
	 	$	10,000,000.00	 
	thereafter
	 	$	5,000,000.00	 





; provided, however, that the reduction shown in the foregoing table shall occur only if all
installments of principal due on or before the date of such scheduled reduction have been paid and
all installments of principal required by Section 2(d) to be redeemed on or before the date of such
scheduled reduction have been redeemed in accordance with Section 2(d); provided further, however,
that if the Company redeems in full in accordance with Section 2(d)(2) the installments of
principal of this Note scheduled to be due on November 2, 2005 and November 2, 2008 on or before
the respective redemption dates therefor specified in Section 2(d)(2), then thereafter through
November 2, 2006 the Required Cash Amount shall be $9,000,000.00, subject to the next succeeding
proviso, and, if the Company also pays in accordance with Section 2(d)(1) the full amount of the
installment of principal due on November 2, 2006 then thereafter the Required Cash Amount shall be
$5,000,000.00; and provided further, however, that if the Company redeems in full in accordance
with Section 2(d)(2) the installments of principal of this Note scheduled to be due on November 2,
2005 and November 2, 2008 on or before the respective redemption dates therefor specified in
Section 2(d)(2), and thereafter the Holder or the holder of the Other Note requires the Company to
redeem all or any portion of this Note in accordance with Section 6.16(b)(2) of the Purchase
Agreement or the Other Purchase Agreement, as the case may be, then to the extent any such
redemption reduces the aggregate outstanding principal amount of this Note and the Other Note to an
amount less than $9,000,000.00, then immediately following such redemption the Required Cash Amount
shall be reduced to the aggregate outstanding principal amount of this Note and the Other Note
immediately after such redemption.




          “Restricted Ownership Percentage” shall have the meaning provided in Section 6(h).




          “Rule 144A” means Rule 144A as promulgated under the 1933 Act or any successor rule thereto.




          “SEC” means the U.S. Securities and Exchange Commission.




-17-









 








          “SEC Filings” shall have the meaning provided in the Purchase Agreement.




          “Security Agreement” means the Security Agreement, dated as of November 2, 2004, by and
between the Company and the Collateral Agent.




          “Share Interest Payment Limitation” means, with respect to any Interest Payment Date, a number
of Interest Payment Shares equal to 50% of the aggregate number of shares of Common Stock traded on
the Principal Market on all of the Trading Days during the period from and including the date that
is 29 Trading Days prior to such Interest Payment Date to and including the date that is 20 Trading
Days prior to such Interest Payment Date (as reported by Bloomberg, L.P. or if such source ceases
to be available, a comparable source selected by the Majority Holders at the request of the Company
and acceptable to the Company in its reasonable judgment), equitably adjusted for stock splits,
stock dividends and similar events that are reflected in the trading market for the Common Stock
during such period, unless the Majority Holders consent in writing to a higher number of shares
with respect to any particular Interest Payment Date.




          “Share Interest Payment Option” shall have the meaning provided in Section 2(a)(1).




          “Share Redemption” means a redemption of this Note or a portion hereof pursuant to Section
2(c).




          “Share Redemption Computation Period” means, with respect to a particular Share Redemption,
the period of 15 consecutive Trading Days ending on and including the Trading Day immediately
preceding the applicable Share Redemption Date for such Share Redemption.




          “Share Redemption Daily Amount” means, with respect to a particular Trading Day in the Share
Redemption Computation Period for a particular Share Redemption, the lesser of following amounts:





     (1) an amount equal to one-fifteenth of the Share Redemption Price stated in the
applicable Share Redemption Notice for such Share Redemption, and




     (2) the Share Redemption Daily Limitation for such Trading Day.



          “Share Redemption Daily Limitation” means, with respect to a particular Trading Day in the
Share Redemption Computation Period for a particular Share Redemption, the sum of (x) 105 percent
of the product obtained by
multiplying (A) the product obtained by multiplying (i) the Allocated Redemption





-18-









 








Percentage for
such Share Redemption times (ii) the number of shares of Common Stock traded on such Trading Day,
as reported by Bloomberg Financial, L.P., based on a Trading Day from 9:30 a.m., Eastern Time, to
4:00 p.m., Eastern Time, using the AQR Function for such Trading Day times (B) the Computed Price ,
plus (y) accrued and unpaid interest on an amount equal to 100 percent of the product of the amount
in clause (A) in the immediately preceding clause (x) times the amount in clause (B) in the
immediately preceding clause (x) to the applicable Share Redemption Date, computed as if the amount
on which such interest were being calculated were principal of this Note to be redeemed on the
applicable Share Redemption Date plus (z) accrued and unpaid interest, if any, computed at the
Default Rate on the amount specified in the immediately preceding clause (y).




          “Share Redemption Date” means, with respect to a particular redemption of this Note or a
portion hereof under Section 2(c), the Trading Day selected by the Company in accordance with
Section 2(c), on which this Note or such portion hereof is to be redeemed pursuant to Section 2(c).




          “Share Redemption Notice” means a Share Redemption Notice in the form attached hereto as
Exhibit G.




          “Share Redemption Period” means the period that commences three Trading Days after the Company
files the Current Report on Form 8-K contemplated by Section 6.3 of the Purchase Agreement
Amendment and ends on December 31, 2005.




          “Share Redemption Price” means an amount equal to the sum of (1) 105 percent of the principal
amount of this Note that is to be redeemed on the applicable Share Redemption Date plus (2) accrued
and unpaid interest on such principal amount to the applicable Share Redemption Date plus (3)
accrued and unpaid interest, if any, at the Default Rate on the amount referred to in the
immediately preceding clause (2) to the applicable Share Redemption Date.




          “Share Redemption Share Amount” means, with respect to a particular Share Redemption, an
amount determined by computing for each Trading Day in the Share Redemption Computation Period for
such Share Redemption the quotient obtained by dividing (x) the Share Redemption Daily Amount for
such Trading Day by (y) the Computed Price for such Trading Day and then computing the sum of such
quotients for all of the Trading Days in such Share Redemption Computation Period.




          “Tender Offer” means a tender offer or exchange offer.




          “Trading Day” means at any time a day on which the Principal Market
is open for the general trading of securities.





-19-









 








          “Transaction Documents” means this Note, the Other Note, the Purchase Agreement, the Purchase
Agreement Amendment, the Other Purchase Agreement, the Security Agreement, the Warrants, the
Redemption Warrant and the Other Redemption Warrants.




          “Transfer Agent” shall mean the institution acting as transfer agent for the Common Stock.




          “Trigger Event” shall have the meaning provided in Section 6(c)(4).




          “Underlying Shares” means the shares of Common Stock issued or issuable upon conversion of, or
in lieu of cash payment of interest on, this Note in accordance with the terms hereof and the
Purchase Agreement.




          “VWAP” of any security on any Trading Day or for any period of Trading Days means the
volume-weighted average price of such security on such Trading Day or for such period of Trading
Days on the Principal Market, as reported by Bloomberg Financial, L.P., based on a Trading Day from
9:30 a.m., Eastern Time, to 4:00 p.m., Eastern Time, using the AQR Function, for such Trading Day
or for such period of Trading Days; provided, however, that during any period that the daily VWAP
is being determined or for any period for which the VWAP is being determined, such VWAP shall be
subject to equitable adjustments from time to time on terms consistent with Section 6(c) and
otherwise reasonably acceptable to the Majority Holders for (i) stock splits, (ii) stock dividends,
(iii) combinations, (iv) capital reorganizations, (v) issuance to all holders of Common Stock of
rights or warrants to purchase shares of Common Stock, (vi) distribution by the Company to all
holders of Common Stock of evidences of indebtedness of the Company or cash (other than regular
quarterly cash dividends), (vii) Tender Offers by the Company or any Subsidiary for, or other
repurchases of shares of, Common Stock in one or more transactions which, individually or in the
aggregate, result in the purchase of more than ten percent of the Common Stock outstanding, and
(viii) similar events relating to the Common Stock, in each case which occur, or with respect to
which the “ex” date occurs, during such period.




          “Warrants” means Common Stock Purchase Warrants of the Company issued to the original Holder
of this Note or its predecessor instrument pursuant to the Purchase Agreement and issued to the
original holders of the Other Note or their predecessor instruments pursuant to the Other Purchase
Agreement, as amended pursuant to the Purchase Agreement Amendment and the like amendments to the
Other Purchase Agreement.





-20-









 








          Section 2. Payment of Certain Interest in Common Stock;
Optional Redemption.




          (a) Issuance of Common Stock in Lieu of Cash Interest. (1) If the Company exercises its
option to make a payment of interest on this Note wholly or partly in Common Stock (the “Share
Interest Payment Option”), the issuance of Interest Payment Shares upon such exercise of the Share
Interest Payment Option shall have been authorized by the Board of Directors of the Company.




          (2) The Company shall not be permitted to exercise the Share Interest Payment Option with
respect to any payment of interest on this Note if:





     (i) on the date the Company notifies the Holder of the Company’s election to exercise
the Share Interest Payment Option or on the date the Company is required to deliver the
Interest Payment Shares, the number of shares of Common Stock authorized, unissued and
unreserved for all purposes, or held in the Company’s treasury, is insufficient to pay the
portion of such interest to be paid in Common Stock;




     (ii) the issuance or delivery of Interest Payment Shares or the public resale of such
Interest Payment Shares by the Holder would require registration or filing with or approval
of any governmental authority under any law or regulation, and such registration, filing or
approval has not been effected or obtained by or is not in effect on the date the Company
notifies the Holder of the Company’s election to exercise the Share Interest Payment Option
or at any time thereafter to and including the later of (A) such Interest Payment Date and
(B) the date the Company delivers such Interest Payment Shares to the Holder, the
Registration Statement (x) is unavailable for use by the Holder for the resale of the
Interest Payment Shares or (y) is not expected to be available for such use for at least 15
Trading Days after the date the Company delivers such Interest Payment Shares to the Holder
and in either case in the preceding clause (x) or (y) the Interest Payment Shares are
ineligible for resale by the Holder under Rule 144(k) under the 1933 Act, unless in any such
case described in this clause (ii) the Holder notifies the Company that it will accept such
Interest Payment Shares notwithstanding the failure to satisfy this clause (ii);




     (iii) the outstanding shares of Common Stock are neither (A) listed or admitted for
trading on a national securities exchange nor (B) quoted on the Nasdaq; or the Interest
Payment Shares shall not at the time of issuance have been authorized for listing, upon
official notice of issuance, on the Principal Market;




     (iv) the Interest Share Price for the Interest Payment Shares is less



-21-









 






than the par
value of the Common Stock;



          (v) an Event of Default has occurred and is continuing on the date the Company makes
such election or on the applicable Interest Payment Date; or




          (vi) on the date the Company notifies the Holder of the Company’s election to exercise
the Share Interest Payment Option or at any time thereafter to and including the later of
(A) such Interest Payment Date and (B) the date the Company delivers such Interest Payment
Shares to the Holder a Maximum Share Amount Deficiency exists.




          (3) (A) The Company may exercise its right to elect the Share Interest Payment Option with
respect to any Interest Payment Date only by giving notice of such election to the Holder not less
than 15 or more than 19 Trading Days prior to such Interest Payment Date, which notice shall state
the percentage of the interest payable on such Interest Payment Date which is to be paid in
Interest Payment Shares. Time shall be of the essence in the giving of such notice. The Company
shall have the right to elect the Share Interest Payment Option with respect to this Note only if
the Company also elects the similar option which it has with respect to the Other Note for the
interest due thereon on the date which is such Interest Payment Date and in each such case pro rata
among this Note and the Other Note, based on the amounts of interest due on such date hereon and
thereon. If the Company elects the Share Interest Payment Option with respect to a particular
Interest Payment Date, the Company shall issue to the Holder in respect of such Interest Payment
Date the aggregate number of whole shares of Common Stock determined by dividing the per share
Interest Share Price of the Common Stock on the applicable Interest Payment Date into an amount
equal to the total amount of lawful money of the United States of America which the Holder would
receive if the aggregate amount of interest due on this Note which is being paid in Common Stock
were being paid in such lawful money. Notwithstanding any other provision of this Note, in no
event may the Company issue in respect of the interest payable on this Note and the Other Note on
any Interest Payment Date an aggregate number of Interest Payment Shares in excess of the Share
Interest Payment Limitation and any interest on this Note not paid in Interest Payment Shares due
to the Share Interest Payment Limitation shall be paid in cash.




          (B) If the Company elects the Share Interest Payment Option with respect to an Interest
Payment Date, the Interest Payment Shares for such Interest Payment Date shall become issuable on
such Interest Payment Date and the Company shall deliver, or cause to be delivered, the appropriate
number of shares of Common Stock to the Holder within three Trading Days after the applicable
Interest Payment Date. If in any case the Company shall fail to deliver or cause to be delivered
such number of shares of Common Stock to the Holder within such





-22-









 







period of three Trading Days, then
in addition to any other liabilities the Company
may have hereunder and under applicable law (1) the Company shall pay or reimburse the Holder on
demand for all out-of-pocket expenses, including, without limitation, reasonable fees and expenses
of legal counsel, incurred by the Holder as a result of such failure, (2) if as a result of such
failure the Holder shall suffer any direct damages or liabilities from such failure (including,
without limitation, margin interest and the cost of purchasing securities to cover a sale (whether
by the Holder or the Holder’s securities broker) or borrowing of shares of Common Stock by the
Holder for purposes of settling any trade involving a sale of shares of Common Stock made by the
Holder during the period beginning on the date the Company notified the Holder of the Company’s
election of the Share Interest Payment Option and ending on the date the Company delivers or causes
to be delivered to the Holder the shares of Common Stock issuable in respect thereof), then the
Company shall upon demand of the Holder pay to the Holder an amount equal to the actual direct,
out-of-pocket damages and liabilities suffered by the Holder by reason thereof which the Holder
documents to the reasonable satisfaction of the Company, and (3) the Holder may by written notice
(which may be given by mail, courier, personal service or telephone line facsimile transmission) or
oral notice (promptly confirmed in writing), given at any time prior to delivery to the Holder of
the shares of Common Stock issuable in connection with such exercise of the Share Interest Payment
Option, require payment in cash of the interest in respect of which the Company exercised the Share
Interest Payment Option, in which case the amount of such interest shall be immediately due and
payable, with interest thereon, if any, at the Default Rate from the applicable Interest Payment
Date until paid in full, and the Company shall not be obligated or entitled to issue such Interest
Payment Shares in respect of such Interest Payment Date. Notwithstanding the foregoing the Company
shall not be liable to the Holder under clause (2) of the immediately preceding sentence to the
extent the failure of the Company to deliver or to cause to be delivered such shares of Common
Stock results from fire, flood, storm, earthquake, shipwreck, strike, war, acts of terrorism, crash
involving facilities of a common carrier, acts of God, or any similar event outside the control of
the Company (it being understood that the action or failure to act of the Transfer Agent shall not
be deemed an event outside the control of the Company except to the extent resulting from fire,
flood, storm, earthquake, shipwreck, strike, war, acts of terrorism, crash involving facilities of
a common carrier, acts of God, or any similar event outside the control of the Transfer Agent or
the bankruptcy, liquidation or reorganization of the Transfer Agent under any bankruptcy,
insolvency or other similar law). The Holder shall notify the Company in writing (or by telephone
conversation, confirmed in writing) as promptly as practicable following the third Trading Day
after such Interest Payment Date if the Holder becomes aware that shares of Common Stock so
issuable have not been received as provided herein but any failure to give such notice shall not
affect the Holder’s rights under this Note or otherwise. If the Company shall have exercised the
Share Interest Payment Option with respect to a particular Interest Payment Date and either (1) the
Company





-23-









 







shall notify the Holder on or after such Interest Payment Date that the Interest
Payment Shares might not be delivered within three Trading Days after such Interest Payment Date or
(2) the Holder learns after the date which is three Trading Days after such Interest Payment Date
that the Holder has not received such Interest Payment Shares, then, without releasing the Company
of its obligations with respect thereto, from and after the Trading Day next succeeding the earlier
of the events described in the preceding clauses (1) and (2) of this sentence the Holder shall make
reasonable efforts not to sell shares of Common Stock in anticipation of receipt of such Interest
Payment Shares in a manner which is likely to increase materially the liability of the Company
under clause (2) of the second preceding sentence. No fractional shares of Common Stock shall be
issued in payment of interest on this Note. In lieu thereof, the Company may, at its option, issue
a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay
lawful money of the United States of America in lieu of issuance of such fractional share.




          (4) If the Company elects the Share Interest Payment Option with respect to a payment of
interest on this Note with respect to a particular Interest Payment Date, the Company shall deliver
to the Holder, on or prior to the date on which Interest Payment Shares for such payment of
interest on this Note are to be received by the Holder, a Company Certificate setting forth (i) the
total amount of the cash interest payment to which the Holder is entitled, (ii) the portion of such
interest payment being made in Interest Payment Shares, expressed in dollars and as a percentage,
(iii) the number of Interest Payment Shares allocable to such payment, as calculated pursuant to
this Section 2(a), (iv) any rounding adjustment to such number or any payment necessary to be made
pursuant to Section 2(a)(3), (v) a brief statement of the facts requiring such adjustment, and (vi)
a representation and warranty, which, if false or misleading, shall be an Event of Default under
Section 4(a)(5), that none of the conditions set forth in Section 2(a)(2) has occurred and is
existing and that all of the requirements of this Section 2(a) have been met. Such Company
Certificate shall be conclusive evidence of the correctness of the calculation of the number of
Interest Payment Shares allocable to the payments to which such Company Certificate relates and of
any adjustments to such number made pursuant to this Section 2(a) in the absence of manifest error.
The Interest Payment Shares shall be duly issued in the name of the Holder or its nominee. On or
before the applicable Interest Payment Date, the Company shall issue, or cause the Transfer Agent
to prepare and issue, the Interest Payment Shares in the name of the Holder or its nominee before
being so delivered by the Company on such Interest Payment Date.




          (5) The Interest Payment Shares, when issued pursuant to and in compliance with this Section
2(a), shall be, and for all purposes shall be deemed to be, validly issued, fully paid and
nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby
authorized; and the issuance





-24-









 







thereof, together with lawful money of the United States of America,
if any, paid in
lieu of fractional shares of Common Stock, will be, and for all purposes shall be deemed to be, in
full discharge and satisfaction of the Company’s obligation to pay the interest on this Note to
which such Interest Payment Shares relate.




          (6) Any amount of interest not paid in Interest Payment Shares shall be due and payable in
cash on the applicable Interest Payment Date.




          (b) Optional and Mandatory Redemption. (1) At any time during the Optional Redemption Period,
the Company shall have the right to redeem the principal installments stated in Section 2(d)(1) to
be due on November 2, 2006 and November 2, 2007 in whole or from time to time in part, and on the
respective dates specified in Section 2(d)(2), the Company shall have the obligation to redeem the
then remaining outstanding amounts of the principal installments stated in Section 2(d)(1) to be
due on November 2, 2005 and November 2, 2008 in full, in each such case by payment of the Optional
Redemption Consideration pursuant to this Section 2(b) on the applicable Optional Redemption Date,
so long as the following conditions precedent are satisfied:





     (A) on the date a particular Optional Redemption Notice is given and at all times
thereafter to and including the applicable Optional Redemption Date, no Event of Default and
no event which, with notice or passage of time, or both, would become an Event of Default
has occurred and is continuing (unless, by reason of such redemption, the requirements of
this clause (A) will be satisfied immediately after the redemption of this Note and the
Other Note on the applicable Optional Redemption Date and the Company shall furnish Company
Certificates to the Holder to such effect on the date such Optional Redemption Notice is
given to the Holder and on the applicable Optional Redemption Date);




     (B) on the date such Optional Redemption Notice is given and at all times thereafter to
and including the applicable Optional Redemption Date, no Repurchase Event has occurred with
respect to which the Holder has the right to exercise repurchase rights pursuant to Section
5 or with respect to which the Holder has exercised such repurchase rights and the
Repurchase Price has not been paid to the Holder and no event which, with notice or passage
of time, or both, would become a Repurchase Event has occurred and is continuing;




     (C) on the date such Optional Redemption Notice is given and at all times thereafter to
and including the applicable Optional Redemption Date, the Registration Statement shall be
effective and available for use by the Holder, the holders of the Other Note and the holders
of the Warrants for the resale of the shares of Common Stock issued and issuable upon
conversion of



-25-









 






this Note and the Other Note and issued or issuable upon exercise of the
Warrants, as the case may be, and is reasonably expected to remain effective and available
for such use for at least 30 days after the applicable Optional Redemption Date, and the
Company shall be in compliance in all material respects with its obligations under the
Registration Rights Agreement;




     (D) on the date such Optional Redemption Notice is given and at all times thereafter to
and including the applicable Optional Redemption Date one or more registration statements
under the 1933 Act covering the resale of the shares of Common Stock issuable to the Holder
upon exercise of the Redemption Warrants issuable to the Holder in payment of a portion of
the Optional Redemption Consideration on the applicable Optional Redemption Date and any
Redemption Warrants previously issued to the Holder shall be effective under the 1933 Act
and available for use by the Holder for the resale of such shares of Common Stock and each
such registration statement shall reasonably be expected to remain available for such use
for at least 30 Trading Days after the applicable Optional Redemption Date;




     (E) on the date such Optional Redemption Notice is given, the Company has funds
available to pay the cash portion of the Optional Redemption Consideration payable on the
applicable Optional Redemption Date;




     (F) other than in the case of a redemption required by Section 2(d)(2) or by Section
6.16(b)(2) of the Purchase Agreement, the Optional Redemption Date selected by the Company
in accordance with this Section 2(b) and set forth in such Optional Redemption Notice shall
be at least 365 days after any earlier Optional Redemption Date;




     (G) except as otherwise provided in Section 6.16(b)(2) of the Purchase Agreement, on
the date such Optional Redemption Notice is given and at all times thereafter to and
including the applicable Optional Redemption Date no Maximum Share Amount Deficiency exists
(unless, by reason of such redemption, the requirements of this clause (G) will be satisfied
immediately after the redemption of this Note and the Other Note on the applicable Optional
Redemption Date and the Company shall furnish Company Certificates to the Holder to such
effect on the date such Optional Redemption Notice is given to the Holder and on the
applicable Optional Redemption Date); and




     (H) during the period beginning five days prior to the date the Company gives such
Optional Redemption Notice and ending on the applicable Optional Redemption Date the Company
shall not have been engaged in discussions or negotiations concerning, or entered in to an



-26-









 






agreement or received any proposal for, any transaction that might result in
a Fundamental Change, and the Company shall not enter into any agreement or accept any
proposal for, any transaction that might result in a Fundamental Change for a period of 60
days after the applicable Optional Redemption Date.


In order to exercise its right of redemption under this Section 2(b) the Company shall give the
particular Optional Redemption Notice to the Holder not less than 20 Trading Days or more than 40
Trading Days prior to the applicable Optional Redemption Date, stating that: (1) the Company is
exercising its right to redeem this Note in accordance with this Section 2(b); (2) the principal
amount of this Note to be redeemed; (3) the amount of the cash portion of the Optional Redemption
Consideration payable on such Optional Redemption Date (assuming no conversion of this Note from
the date the Company gives such Optional Redemption Notice to the applicable Optional Redemption
Date); (4) the number of shares of Common Stock and the purchase price therefor to be contained in
the Redemption Warrant included in such Optional Redemption Consideration (assuming no conversion
of this Note from the date the Company gives such Optional Redemption Notice to the applicable
Optional Redemption Date); (5) the Optional Redemption Date; and (6) that all of the conditions of
this Section 2(b) entitling the Company to call this Note for redemption have been met. On the
Optional Redemption Date (or such later date as the Holder surrenders this Note to the Company) the
Company shall (x) pay to or upon the order of the Holder, by wire transfer of immediately available
funds to such account as shall be specified for such purpose by the Holder at least one Business
Day prior to the applicable Optional Redemption Date, an amount equal to the cash portion of the
Optional Redemption Consideration and (y) issue and deliver to the Holder the portion of such
Optional Redemption Consideration consisting of the Redemption Warrant, which will be deemed for
all purposes to have been issued to the Holder on the applicable Optional Redemption Date, unless
the Company shall have failed to pay the amount specified in the immediately preceding clause (x)
when due.




          (2) The Company shall not be entitled to give an Optional Redemption Notice or to redeem any
portion of this Note with respect to which the Holder has given a Conversion Notice on or prior to
the date the Company gives such Optional Redemption Notice. Notwithstanding the giving of a
particular Optional Redemption Notice, the Holder shall be entitled to convert all or any portion
of this Note, in accordance with the terms of this Note, by giving a Conversion Notice at any time
on or prior to the later of (1) the date which is one Trading Day prior to the applicable Optional
Redemption Date and (2) if the Company fails to pay and deliver to the Holder, or deposit in
accordance with Section 7(k), the Optional Redemption Consideration payable on the applicable
Optional Redemption Date on or before the applicable Optional Redemption Date, the date on which
the Company pays and delivers to the Holder,
or deposits in





-27-









 







accordance with Section 7(k), such
Optional Redemption Consideration. If after
giving effect to any such conversion of this Note that occurs after the date the Company gives a
particular Optional Redemption Notice to the Holder, the principal amount of this Note remaining
outstanding is less than the amount thereof to be redeemed as stated in the applicable Optional
Redemption Notice, then the Optional Redemption Consideration set forth in the Optional Redemption
Notice shall be adjusted to reflect the reduced outstanding principal amount of this Note and
related accrued interest (and interest, if any, thereon at the Default Rate) on the applicable
Optional Redemption Date resulting from any such conversions of this Note after the Company gives
such Optional Redemption Notice to the Holder. Any redemption of this Note pursuant to this
Section 2(b), other than a redemption required by Section 2(d)(2), shall be applied to the
installments of principal outstanding on the applicable Optional Redemption Date first to the
principal installment stated in Section 2(d)(1) to be due on November 2, 2007, second to the
principal installment stated in Section 2(d)(1) to be due on November 2, 2006 and thereafter to the
remaining principal installments in the inverse order of their maturity stated in Section 2(d)(1),
and any redemption of this Note pursuant to this Section 2(b) that is required by Section 2(d)(2)
shall be applied to the installment of principal outstanding on the applicable Optional Redemption
Date that is required by Section 2(d)(2) to be redeemed under this Section 2(b) on such Optional
Redemption Date.




          (3) In order that the Company shall not discriminate among the Holder and the holders of the
Other Note, the Company agrees that each redemption of this Note pursuant to this Section 2(b)
shall be made at the same time as a redemption by the Company of the Other Note and that such
redemption shall be made pro rata based on the principal amounts of this Note and the Other Note
outstanding on the date the Company gives the particular Optional Redemption Notice. In order that
the Company not discriminate among the Holder and the holders of the Other Note, the Company agrees
that it shall not redeem any of the Other Note pursuant to the provisions thereof similar to this
Section 2(b) or repurchase or otherwise acquire any of the Other Note (other than a mandatory
redemption pursuant to provisions of the Other Note comparable to Section 5 or as provided in
Sections 6.2 and 6.16 of the Purchase Agreement and the Other Purchase Agreement) unless the
Company offers simultaneously to redeem, repurchase or otherwise acquire a pro rata portion (based
on outstanding principal amount) of this Note for cash at the same unit price as the Other Note or
Other Note.




          (c) Share Redemption. (1) During the Share Redemption Period, the Company shall, as provided
in Sections 2(d)(2) and 2(d)(3), redeem the principal installments of this Note due on November 2,
2005 and November 2, 2008 in whole or from time to time in part, in each such case by issuing the
number of shares of






-28-









 







Common Stock to the Holder determined as provided in Section 2(c)(2), so long
as
the following conditions precedent are satisfied:





     (A) on the date a particular Share Redemption Notice is given and at all times
thereafter to and including the applicable Share Redemption Date, no Event of Default and no
event which, with notice or passage of time, or both, would become an Event of Default has
occurred and is continuing (unless, by reason of such redemption, the requirements of this
clause (A) will be satisfied immediately after the redemption of this Note and the Other
Note on the applicable Share Redemption Date and the Company shall furnish Company
Certificates to the Holder to such effect on the date such Share Redemption Notice is given
to the Holder and on the applicable Share Redemption Date);




     (B) on the date such Share Redemption Notice is given and at all times thereafter to
and including the applicable Share Redemption Date, no Repurchase Event has occurred with
respect to which the Holder has the right to exercise repurchase rights pursuant to Section
5 or with respect to which the Holder has exercised such repurchase rights and the
Repurchase Price has not been paid to the Holder and no event which, with notice or passage
of time, or both, would become a Repurchase Event has occurred and is continuing;




     (C) on the date such Share Redemption Notice is given and at all times thereafter to
and including the applicable Share Redemption Date, the Registration Statement shall be
effective and available for use by the Holder, the holders of the Other Note and the holders
of the Warrants for the resale of the shares of Common Stock issued and issuable upon such
Share Redemption and issued or issuable upon conversion of this Note and the Other Note and
issued or issuable upon exercise of the Warrants, as the case may be, and is reasonably
expected to remain effective and available for such use for at least 30 days after the
applicable Share Redemption Date, and the Company shall be in compliance in all material
respects with its obligations under the Registration Rights Agreement;




     (D) on the date such Share Redemption Notice is given, the Company has authorized and
unissued shares of Common Stock not reserved for any purpose other than Share Redemption of
this Note in an amount sufficient to satisfy the applicable Share Redemption
Price by
issuance of shares of Common Stock;




     (E) the Share Redemption Date selected by the Company in accordance with this Section
2(c) and set forth in such Share Redemption Notice shall be at least 24 Trading Days after
any earlier Share Redemption



-29-









 






Date;




     (F) the Company shall have complied with Section 3(o) with respect to all Share
Redemptions occurring prior to the giving of such Share Redemption Notice;




     (G) on the date such Share Redemption Notice is given and at all times thereafter to
and including the applicable Share Redemption Date no Maximum Share Amount Deficiency exists
and no Maximum Share Amount Deficiency would result from such Share Redemption or the
contemporaneous redemption of the Other Note pursuant to Section 2(c) thereof;




     (H) during the period beginning five days prior to the date the Company gives such
Share Redemption Notice and ending on the applicable Share Redemption Date the Company shall
not have been engaged in discussions or negotiations concerning, or entered in to an
agreement or received any proposal for, any transaction that might result in a Fundamental
Change, and the Company shall not enter into any agreement or accept any proposal for, any
transaction that might result in a Fundamental Change for a period of 60 days after the
applicable Share Redemption Date; and




     (I) the Computed Price for such Share Redemption is not less than the par value of the
Common Stock.


In order to exercise its right of redemption under this Section 2(c) the Company shall give the
particular Share Redemption Notice to the Holder not less than 17 Trading Days or more than 19
Trading Days prior to the applicable Share Redemption Date, stating: (1) that the Company is
exercising its right to redeem this Note in accordance with this Section 2(c), (2) the principal
amount of this Note to be redeemed (assuming no conversion of this Note from the date the Company
gives such Share Redemption Notice to the applicable Share Redemption Date and that the Share
Redemption Share Amount for such Share Redemption will be computed based on the entire such
principal amount), (3) the amount of the Share Redemption Price payable on such Share Redemption
Date (assuming no conversion of this Note from the date the Company gives such Share Redemption
Notice to the applicable Share Redemption Date and that the Share Redemption Share Amount for such
Share Redemption will be computed based on the entire principal amount included such Share
Redemption Price), (4) the principal installment to which such Share Redemption shall be applied,
(5) the applicable Share Redemption Date and (6) that all of the conditions of this Section 2(c)
entitling the Company to call this Note for redemption have been met. As promptly as practicable,
but in no event later than three Trading Days, after the applicable Share Redemption Date, the
Company shall issue and shall deliver to the Holder or the Holder’s designee the





-30-









 







number of full
shares of Common Stock issuable upon such Share Redemption of
this Note or portion hereof in accordance with the provisions of this Section 2(c) and deliver a
check or cash in respect of any fractional interest in respect of a share of Common Stock arising
upon such redemption, as provided in Section 2(c)(7). In lieu of delivering physical certificates
for the shares of Common Stock issuable upon any such redemption of this Note, provided the
Transfer Agent is participating in FAST, upon request of the Holder, the Company shall use
commercially reasonable efforts to cause the Transfer Agent electronically to transmit such shares
of Common Stock issuable upon redemption to the Holder (or its designee), by crediting the account
of the Holder’s (or such designee’s) broker or other participant with DTC through DWAC (provided
that the same time periods herein as for stock certificates shall apply). The Holder shall have
the right, exercisable by notice given to the Company from time to time after the Company gives a
Share Redemption Notice for a particular Share Redemption, to require the Company to deliver to the
Holder a portion of the shares of Common Stock issuable in connection with a particular Share
Redemption in advance of the date that is three Trading Days after the applicable Share Redemption
Date, in which case the shares so requested shall be delivered within three Trading Days after the
Holder gives such notice to the Company. The aggregate number of shares of Common Stock required
to be so delivered in advance of a particular Share Redemption Date may not exceed the sum for the
elapsed Trading Days in the applicable Share Redemption Computation Period of quotient obtained by
dividing (1) the Share Redemption Daily Amount for each such Trading Day by (2) the Computed Price
for such Trading Day.




          (2) The number of shares of Common Stock issuable by the Company in respect of each Share
Redemption shall be the Share Redemption Share Amount for such Share Redemption. Notwithstanding
the principal amount of this Note to be redeemed as stated in the Share Redemption Notice for a
particular Share Redemption, the principal amount actually redeemed shall be the sum, for all of
the Trading Days in the Share Redemption Computation Period for such Share Redemption, of (x) the
principal amount of this Note included in the amount specified in clause (1) of the definition of
Share Redemption Daily Amount for each Trading Day in such Share Redemption Computation Period for
which the Share Redemption Daily Amount for such Trading Day is computed under clause (1) of such
definition, or (y) the product obtained by multiplying (i) the amount set forth in subclause (A) of
the definition of Share Redemption Daily Limitation times (ii) the amount set forth in subclause
(B) of the definition of Share Redemption Daily Limitation for each Trading Day in such Share
Redemption Computation Period for which the Share Redemption Daily Amount for such Trading Day is
computed under clause (2) of such definition.




          (3) The Company shall not be entitled to give a Share Redemption Notice or to redeem any
portion of this Note with respect to which the Holder has given a Conversion Notice on or prior to
the date the Company gives such Share





-31-









 







Redemption Notice. Notwithstanding the giving of a
particular Share Redemption
Notice, the Holder shall be entitled to convert all or any portion of this Note, in accordance with
the terms of this Note, to be redeemed by reason of the giving of such Share Redemption Notice by
giving a Conversion Notice at any time on or prior to the later of (1) the date which is one
Trading Day prior to the applicable Share Redemption Date and (2) if the Company fails to issue or
deliver to the Holder the shares of Common Stock issuable in satisfaction of such Share Redemption
Price on or before the due date therefor, the date on which the Company issues and delivers to the
Holder such shares of Common Stock. If after giving effect to any such conversion of this Note
that occurs after the date the Company gives a particular Share Redemption Notice to the Holder,
the principal amount of a particular principal installment of this Note remaining outstanding is
less than the amount thereof to be redeemed as stated in the applicable Share Redemption Notice,
then the Share Redemption Share Amount for such Share Redemption shall be reduced form what it
otherwise would be to reflect the reduced outstanding principal amount of this Note and related
accrued interest (and interest, if any, thereon at the Default Rate) on the applicable Share
Redemption Date resulting from any such conversions of this Note after the Company gives such Share
Redemption Notice to the Holder. Such reduction of the Share Redemption Share amount shall be made
by reducing the Share Redemption Daily Amounts used to calculate the Share Redemption Share Amount
for such Share Redemption in the inverse of their chronological order to the extent necessary to
reduce the principal amount reflected in such Share Redemption Share Amount by the principal amount
so converted. Any redemption of this Note pursuant to this Section 2(c) that is required by
Section 2(d)(2) shall be applied to the installments of principal outstanding on the applicable
Share Redemption Date first to the principal installment stated by Section 2(d)(1) to be due on
November 2, 2005 and then to the principal installment stated by Section 2(d)(1) to be due on
November 2, 2008.




          (4) Each redemption of this Note (or portion hereof) pursuant to this Section 2(c) shall be
deemed to have been effected on the applicable Share Redemption Date, and the person in whose name
any certificate or certificates for shares of Common Stock shall be issuable upon such redemption
shall be deemed to have become on such Share Redemption Date the holder of record of the shares
represented thereby; provided, however, that if a Share Redemption Date is a date on which the
stock transfer books of the Company shall be closed such redemption shall constitute the person in
whose name the certificates are to be issued as the record holder thereof for all purposes on the
next succeeding day on which such stock transfer books are open. Upon redemption of this Note or
any portion hereof pursuant to this Section 2(c), the accrued and unpaid interest on this Note (or
portion hereof) so redeemed to (but excluding) the applicable Share Redemption Date shall be deemed
to be paid to the Holder of this Note through receipt of such number of shares of Common Stock
issued upon redemption of this Note or portion




-32-









 







hereof as shall have an aggregate Current Market
Price on the Trading Day
immediately preceding such Share Redemption Date equal to the amount of such accrued and unpaid
interest.




          (5) The Company shall not be required to pay any tax which may be payable in respect of any
transfer involved in the issuance and delivery of shares of Common Stock or other securities or
property on redemption of this Note pursuant to this Section 2(c) in a name other than that of the
Holder, and the Company shall not be required to issue or deliver any such shares or other
securities or property unless and until the person or persons requesting the issuance thereof shall
have paid to the Company the amount of any such tax or shall have established to the satisfaction
of the Company that such tax has been paid. The Holder shall be responsible for the amount of any
income or withholding tax payable in connection with any such redemption of this Note.




          (6) (A) If the Company shall have given a Share Redemption Notice in accordance with the terms
of this Note, the Company’s obligation to issue and deliver the shares of Common Stock upon such
redemption on the terms and subject to the conditions of this Note shall be absolute and
unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver
or consent with respect to any provision hereof, the recovery of any judgment against any person or
any action to enforce the same, any failure or delay in the enforcement of any other obligation of
the Company to the Holder, or any setoff, counterclaim, recoupment, limitation or termination, or
any breach or alleged breach by the Holder or any other person of any obligation to the Company or
any violation or alleged violation of law by the Holder or any other Person, and irrespective of
any other circumstance which might otherwise limit such obligation of the Company to the Holder in
connection with such redemption; provided, however, that nothing herein shall limit or prejudice
the right of the Company to pursue any such claim in any other manner permitted by applicable law.




          (B) If in any case the Company shall fail to issue and deliver the shares of Common Stock to
the Holder in connection with a particular redemption of this Note within three Trading Days after
the due date therefor, in addition to any other liabilities the Company may have hereunder and
under applicable law (i) the Company shall pay or reimburse the Holder on demand for all
out-of-pocket expenses, including, without limitation, reasonable fees and expenses of legal
counsel, incurred by the Holder as a result of such failure and (ii) if as a result of such failure
the Holder shall suffer any direct damages or liabilities from such failure (including, without
limitation, margin interest and the cost of purchasing securities to cover a sale (whether by the
Holder or the Holder’s securities broker) or borrowing of shares of Common Stock by the Holder for
purposes of settling any trade involving a sale of shares of Common Stock made by the Holder during
the period beginning on the Issuance Date and ending on the date the Company





-33-









 







delivers or causes to
be delivered to the Holder such shares of Common Stock), then
the Company shall upon demand of the Holder pay to the Holder an amount equal to the actual direct,
out-of-pocket damages and liabilities suffered by the Holder by reason thereof which the Holder
documents to the reasonable satisfaction of the Company. Notwithstanding the foregoing, the
Company shall not be liable to the Holder under clause (ii) of the immediately preceding sentence
to the extent the failure of the Company to deliver or to cause to be delivered such shares of
Common Stock results from fire, flood, storm, earthquake, shipwreck, strike, war, acts of
terrorism, crash involving facilities of a common carrier, acts of God, or any similar event
outside the control of the Company (it being understood that the action or failure to act of the
Transfer Agent shall not be deemed an event outside the control of the Company except to the extent
resulting from fire, flood, storm, earthquake, shipwreck, strike, war, acts of terrorism, crash
involving facilities of a common carrier, acts of God, or any similar event outside the control of
the Transfer Agent or the bankruptcy, liquidation or reorganization of the Transfer Agent under any
bankruptcy, insolvency or other similar law). In the case of the Company’s failure to issue and
deliver or cause to be delivered the shares of Common Stock to the Holder within three Trading Days
of the due date therefor, the amount payable by the Company pursuant to this clause (B) of Section
2(c)(6) with respect to such conversion shall be reduced by the amount of Redemption Delay Payments
previously paid by the Company to the Holder with respect to such redemption. The Holder shall
notify the Company in writing (or by telephone conversation, confirmed in writing) as promptly as
practicable following the third Trading Day after the applicable Share Redemption Date if the
Holder becomes aware that such shares of Common Stock so issuable have not been received as
provided herein, but any failure so to give such notice shall not affect the Holder’s rights under
this Note or otherwise. If the Holder learns after the date which is three Trading Days after the
due date for delivery of shares of Common Stock under this Section 2(c) that the Holder has not
received such shares of Common Stock, then, without releasing the Company of its obligations with
respect thereto, from and after the Trading Day next succeeding the date the Holder so learns of
such failure of delivery, the Holder shall make reasonable efforts not to sell shares of Common
Stock in anticipation of receipt of such shares of Common Stock in a manner which is likely to
increase materially the liability of the Company under clause (ii) of the first sentence of this
clause (B) of Section 2(c)(6).




          (C) If the Company fails to deliver or cause to be delivered to the Holder such shares of
Common Stock pursuant to this Section 2(c) (free of any restrictions on transfer or legends except
to the extent permitted under Section 6.11 of the Purchase Agreement) in accordance herewith,
within five Trading Days after a particular Share Redemption Date, then, in addition to any other
liability the Company may have, the Company shall pay to the Holder, in cash, upon demand of the
Holder from time to time an amount, computed at the rate of 2% per month of the VWAP of the Common
Stock multiplied by the number of shares of Common





-34-









 







Stock not timely delivered by the Company, for
each day in the period such failure
continues (the “Redemption Delay Payments”), without duplication of any amount payable to the
Holder pursuant to clause (F) of Section 2(c)(i) of the Registration Rights Agreement, with each
change in the VWAP of the Common Stock during such period being given effect. Such payments shall
be made on the last day of each calendar month so long as the Company’s obligation to make such
payments continues and on the date the Company makes such delivery of such shares of Common Stock.




          (7) No fractional shares of Common Stock shall be issued upon any Share Redemption of this
Note but, in lieu of any fraction of a share of Common Stock which would otherwise be issuable in
respect of such redemption, the Company may round the number of shares of Common Stock issued on
such redemption up to the next highest whole share or may pay lawful money of the United States of
America for such fractional share, based on a value of one share of Common Stock being equal to the
Market Price of the Common Stock on the applicable Share Redemption Date.




          (8) In order that the Company shall not discriminate among the Holder and the holder of the
Other Note, the Company agrees that each redemption of this Note pursuant to this Section 2(c)
shall be made at the same time as a redemption by the Company of the Other Note and that the amount
of such redemption shall be made pro rata based on the original principal amounts of the
installments of principal of this Note and the Other Note being redeemed by reason of, or
contemporaneous with, the giving of such Share Redemption Notice unless the outstanding principal
amounts of the installments of principal of this Note and the Other Note being redeemed are unequal
on the applicable Share Redemption Date and the full amount of the lesser of such installments is
being redeemed in full in or contemporaneous with such Share Redemption. In order that the Company
not discriminate among the Holder and the holder of the Other Note, the Company agrees that it
shall not redeem any of the Other Note pursuant to the provisions thereof similar to this Section
2(c) or repurchase or otherwise acquire any of the Other Note (other than a mandatory redemption
pursuant to provisions of the Other Note comparable to Section 5 or as provided in Sections 6.2 and
6.16 of the Purchase Agreement and the Other Purchase Agreement) unless the Company offers
simultaneously to redeem, repurchase or otherwise acquire a pro rata portion (based on the original
outstanding principal amount of the installment of principal to be redeemed, in the case of
redemption under Section 2(c), or otherwise based on outstanding principal amount) of this Note for
the same form of consideration at the same unit price as the Other Note.




          (9) (A) Notwithstanding anything to the contrary contained herein, the number of shares of
Common Stock that may be issued to the Holder by the Company upon a particular Share Redemption
shall not exceed a number that for





-35-









 







purposes of Section 13(d) of the 1934 Act and Regulation 13D-G
thereunder
(including, without limitation, as the same is made applicable to Section 16 of the 1934 Act and
the rules promulgated thereunder), would constitute beneficial ownership by the Holder of more than
4.9% of the shares of Common Stock for purposes of Section 13(d) or Section 16 of the 1934 Act and
the rules promulgated thereunder. The Holder shall have the right at any time and from time to
time to reduce the aforesaid 4.9% limitation immediately upon notice to the Company in the event
and only to the extent that Section 13(d) or 16 of the 1934 Act or the rules promulgated thereunder
(or any successor statute or rules) is changed to reduce the beneficial ownership percentage
threshold thereunder to a percentage less than 5% or 10%, as the case may be. If at any time the
limits in this Section 2(c)(9) make any portion of this Note unredeemable in whole or in part in a
particular Share Redemption, the Share Redemption Daily Amounts used to calculate the Share
Redemption Share Amount for such Share Redemption shall be reduced in the inverse of their
chronological order to the extent necessary to reduce the Share Redemption Share Amount for such
Share Redemption to an amount that will not require issuance of a number of shares of Common Stock
in excess of the limitation provided in this Section 2(c)(9) and the principal amount of this Note
redeemed in such Share Redemption shall be reduced accordingly, but any such principal amount not
so redeemed may be redeemed in a subsequent Share Redemption on the terms and subject to the
conditions of this Note.




          (B) The provisions of Section 6(h)(2) shall be applicable to the provisions of this Section
2(c)(9).




          (d) Installments of Principal; Mandatory Prepayments. (1) Installments. Subject to Section
2(d)(2), the principal of this Note shall become due in installments as follows:




	 	 	 
	Principal Amount	 	Due Date
	$2,500,000.00

	 	November 2, 2005
	$2,500,000.00

	 	November 2, 2006
	$2,500,000.00

	 	November 2, 2007
	$2,500,000.00

	 	November 2, 2008





The amounts of such installments that are payable on each such date are subject to reduction as
provided in Sections 2(b), 2(c), 5 and 6.




          (2) Early Redemption of 2005 and 2008 Installments. The





-36-









 







Company shall redeem the principal
installment scheduled to be due on November
2, 2005 not later than August 31, 2005 and shall redeem the principal installment scheduled to be
due on November 2, 2008 not later than December 31, 2005, in each case through one or more
redemptions pursuant to Section 2(c); provided, however, that if the Company is unable to redeem
all or any portion of either such installment of principal pursuant to Section 2(c) by the
applicable date provided above in this Section 2(d)(2), then on such applicable date the Company
shall redeem pursuant to Section 2(b) (including, without limitation, by giving an Optional
Redemption Notice as required by Section 2(b)) any amount thereof not redeemed pursuant to Section
2(c).




          (3) Concerning Share Redemptions. The Company shall act in good faith to make the Share
Redemptions at such times, with such frequency and in such amounts as shall be reasonably expected
to result in redemption in full of each installment of principal of this Note through Share
Redemptions prior to the applicable deadlines for completing the same that are specified in Section
2(d)(2).




          (e) No Other Prepayment by the Company. Except as specifically provided in Sections 2(b),
2(c) and 2(d), this Note may not be prepaid, redeemed or repurchased at the option of the Company
prior to the applicable Installment Maturity Dates or the Final Maturity Date, as the case may be.
In order that the Company not discriminate among the Holder and the holders of the Other Note, the
Company agrees that it shall not prepay, redeem, repurchase or otherwise acquire any of the Other
Note, other than pursuant to Section 6.16 of the Other Purchase Agreement, unless the Company
offers simultaneously to prepay, redeem, repurchase or otherwise acquire a pro rata portion of this
Note for the same form of consideration and at the same price per unit of outstanding principal
amount as the Other Note or Other Note.




          (f) Redemption at the Option of the Holder. The Holder has the right to require the Company
to redeem this Note as provided in Sections 6.2 and 6.16 of the Purchase Agreement.




          Section 3. Certain Covenants.




          So long as the Company shall have any obligation under this Note, unless otherwise consented
to in advance by the Majority Holders:




          (a) Limitations on Certain Indebtedness. The Company will not itself, and will not permit any
Subsidiary to, create, assume, incur or in any manner become liable in respect of, including,
without limitation, by reason of any business combination transaction (all of which are referred to
herein as “incurring”), any Indebtedness other than Permitted Indebtedness.




-37-









 








          (b) Payment of Obligations. The Company will pay and
discharge, and will cause each Subsidiary to pay and discharge, when due all their respective
obligations and liabilities, including, without limitation, tax liabilities, except where the same
may be contested in good faith by appropriate proceedings and the Company shall have established
adequate reserves therefor on its books.




          (c) Maintenance of Property; Insurance. (1) The Company will keep, and will cause each
Subsidiary to keep, all property which, in the reasonable business judgment of the Company, is
useful and necessary in its business in good working order and condition, ordinary wear and tear
excepted.




          (2) The Company will maintain, and will cause each Subsidiary to maintain, with financially
sound and responsible insurance companies, insurance, in at least such amounts and against such
risks as is reasonably adequate for the conduct of their respective businesses and the value of
their respective properties.




          (d) Conduct of Business and Maintenance of Existence. The Company will continue, and will
cause each Subsidiary to continue, to engage in business of the same general type as now conducted
by the Company, and will preserve, renew and keep in full force and effect, and will cause each
Subsidiary to preserve, renew and keep in full force and effect their respective corporate
existence and their respective rights, privileges and franchises necessary or desirable in the
normal conduct of business, in each case other than where the failure to do so in respect of any
Subsidiary or Subsidiaries individually or in the aggregate could not reasonably be expected to
have a material adverse effect on (i) the business, properties, operations, condition (financial or
other), results of operation or financial prospects of the Company and the Subsidiaries, taken as a
whole, or (ii) the ability of the Company to pay and perform its obligations under the Transaction
Documents.




          (e) Compliance with Laws. The Company will comply, and will cause each Subsidiary to comply,
in all material respects with all applicable laws, ordinances, rules, regulations, decisions,
orders and requirements of governmental authorities and courts (including, without limitation,
environmental laws) except (i) where compliance therewith is contested in good faith by appropriate
proceedings or (ii) where non-compliance therewith could not reasonably be expected to have a
material adverse effect on the business, condition (financial or otherwise), operations,
performance, properties or financial prospects of the Company and the Subsidiaries, taken as a
whole.




          (f) Investment Company Act. The Company will not be or become an open-end investment trust,
unit investment trust or face-amount certificate company that is or is required to be registered
under Section 8 of the Investment Company Act of 1940, as amended.




-38-









 








          (g) Limitations on Asset Sales, Liquidations, Etc.; Certain Matters. The Company shall not




          (1) sell, convey or otherwise dispose of all or substantially all of the assets of the Company
as an entirety or substantially as an entirety in a single transaction or in a series of
transactions;




          (2) sell one or more Subsidiaries, or permit any one or more Subsidiaries to sell its the
assets, if such sale individually or in the aggregate is material to the Company and the
Subsidiaries taken as a whole, other than any such sale or sales which individually or in the
aggregate could not reasonably be expected to have a material adverse effect on (i) the business,
properties, operations, condition (financial or other), results of operation or financial prospects
of the Company and the Subsidiaries, taken as a whole, (ii) the validity or enforceability of, or
the ability of the Company to perform its obligations under, the Transaction Documents; (iii) the
rights and remedies of the Holder under the terms of the Transaction Documents; or (iv) the
Collateral or the first priority perfected security interest in the Collateral granted to the
Collateral Agent pursuant to the Security Agreement; or




          (3) liquidate, dissolve or otherwise wind up the affairs of the Company.




          (h) Limitation on Certain Issuances. The Company shall not offer, sell or issue, or enter
into any agreement, arrangement or understanding to offer, sell or issue, any Common Stock or
Common Stock Equivalent (A) that is convertible into, exchangeable or exercisable for, or includes
the right to receive additional shares of Common Stock either (x) at a conversion, exercise or
exchange rate or other price that is based upon and/or varies with the trading prices of or
quotations for the Common Stock at any time after the initial issuance of such Common Stock or
Common Stock Equivalent, or (y) with a fixed conversion, exercise, exchange or purchase price that
is subject to being reset at some future date after the initial issuance of such Common Stock or
Common Stock Equivalent or upon the occurrence of specified or contingent events directly or
indirectly related to the business of the Company or the market for the Common Stock (but excluding
customary stock split, reverse stock split, stock dividend and similar anti-dilution provisions
substantially similar to those set forth in clauses (1) through (7) of Section 6(c)), or (B)
pursuant to an “equity line” structure in which one or more Persons commits to provide capital to
the Company by the purchase of securities of the Company from time to time, whether at specified
times, times determined by the Company or by such Person(s) or by mutual agreement between the
Company and such Person(s), at prices based on the market prices of the Common Stock at or near the
time of each purchase, which securities are registered for sale or resale





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pursuant to the 1933 Act;
provided, however, that nothing in this Section 3(h) shall
prohibit the Company from issuing (1) shares of Common Stock for cash for the account of the
Company in an offering that is underwritten on a firm commitment basis and registered with the SEC
under the 1933 Act or (2) the Other Note, the Warrants, the Redemption Warrant and the Other
Redemption Warrants.




          (i) Limitations on Liens. The Company will not itself, and will not permit any Subsidiary to,
create, assume or suffer to exist any mortgage, lien, pledge, security interest or other charge or
encumbrance (including, without limitation, the lien or retained security title of a conditional
vendor), all of which are referred to below as “liens”, upon all or any part of its property of any
character, whether owned at the date hereof or thereafter acquired, except:





     (1) liens upon any property of any Subsidiary or Subsidiaries as security for
Indebtedness owing by such Subsidiary to the Company;




     (2) purchase money liens upon any property acquired by the Company or any Subsidiary,
or liens existing on such property at the time of acquisition and in any such case securing
Permitted Indebtedness described in clause (3) of the definition of the term Permitted
Indebtedness; provided that (i) no such lien shall extend to or cover any other property of
the Company or any Subsidiary, (ii) the principal amount of Indebtedness secured by each
such lien on any such property shall not exceed the cost (including such principal amount of
the Indebtedness secured thereby) to the Company or the Subsidiary of the property subject
thereto, and (iii) the aggregate principal amount of all Indebtedness of the Company and all
Subsidiaries secured by all liens described in this subsection (2) and any extensions,
renewals or replacements thereof, at any one time outstanding, shall not exceed $5 million
for the Company and the Subsidiaries; and the extending, renewing or replacing of any lien
permitted by this subsection (2) or of the Indebtedness secured thereby; provided, however,
that in any such case the lien by which any lien is extended, renewed or replaced shall not
extend to or cover any other property of the Company or any Subsidiary and the principal
amount of such Indebtedness extended, renewed or replaced shall not be increased;




     (3) liens securing this Note and the Other Note ratably and not securing any other
Indebtedness of the Company, any Subsidiary or any other Person;




     (4) liens for taxes or assessments or governmental charges or levies on its property if
such taxes or assessments or charges or levies shall not at the time be due and payable or
if the amount, applicability, or validity of any



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such tax, assessment, charge or levy shall
currently be contested in good faith
by appropriate proceedings or necessary preliminary steps are being taken to contest,
compromise or settle the amount thereof or to determine the applicability or validity
thereof and if the Company or such Subsidiary, as the case may be, shall have set aside on
its books reserves (segregated to the extent required by sound accounting practice) deemed
by it adequate with respect thereto; deposits or pledges to secure payment of worker’s
compensation, unemployment insurance, old age pensions or other social security; deposits or
pledges to secure performance of bids, tenders, contracts (other than contracts for the
payment of money borrowed or credit extended), leases, public or statutory obligations,
surety or appeal bonds, or other deposits or pledges for purposes of like general nature in
the ordinary course of business; mechanics’, carriers’, workers’, repairmen’s or other like
liens arising in the ordinary course of business securing obligations which are not overdue
for a period of 60 days, or which are in good faith being contested or litigated, or
deposits to obtain the release of such liens; liens created by or resulting from any
litigation or legal proceedings or proceedings being contested in good faith by appropriate
proceedings, provided any execution levied thereon shall be stayed; leases made, or existing
on property acquired, in the ordinary course of business; landlords’ liens under leases to
which the Company or any Subsidiary is a party; and zoning restrictions, easements, licenses
or restrictions on the use of real property or minor irregularities in title thereto;
provided that all such liens described in this subsection (4) do not, in the aggregate,
materially impair the use of such property in the operations of the business of the Company
or any Subsidiary or the value of such property for the purpose of such business;




     (5) liens existing on the Issuance Date and listed in Schedule 3.13 to the Purchase
Agreement; and




     (6) liens upon raw materials, works in progress and finished goods inventory and
accounts receivable granted to a bank, finance company or other institutional lender
providing receivables and inventory financings;


provided that no lien described in the preceding clause (1), (2), (4), (5) or (6) shall extend,
cover or relate to the Collateral.




          (j) Transactions with Affiliates. The Company will not pay, and will not permit any
Subsidiary, directly or indirectly, to pay, any funds to or for the account of, make any investment
(whether by acquisition of stock or Indebtedness, by loan, advance, transfer of property, guarantee
or other agreement to pay, purchase or service, directly or indirectly, any Indebtedness, or
otherwise) in, lease, sell, transfer or otherwise dispose of any assets, tangible or intangible,
to, or participate in, or effect any transaction in connection with, any joint enterprise or







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other
joint arrangement with, any Affiliate of the Company, except, on terms to the
Company or such Subsidiary no less favorable than terms that could be obtained by the Company or
such Subsidiary from a Person that is not an Affiliate of the Company, as determined in good faith
by the Board of Directors.




          (k) Notice of Defaults. The Company shall notify the Holder promptly, but in any event not
later than five days after the Company becomes aware of the fact, of any failure by the Company to
comply with this Section 3 or any other material provision of any Transaction Document.




          (l) Listing Eligibility Reporting. The Company shall notify the Holder from time to time
within five days after the Company first learns that it does not meet any of the applicable
requirements for the continued listing of the Common Stock on the Principal Market and shall make
appropriate public announcement thereof so that the content of such notice shall not constitute
material non-public information for purposes of the 1934 Act.




          (m) Maintenance of Cash and Cash Equivalents Balances. The Company shall at all times
maintain Cash and Cash Equivalents Balances at least equal to the Required Cash Amount. The
Company shall certify the amount of its Cash and Cash Equivalents Balances to the Holder as of the
end of each calendar quarter, and from time to time upon request of the Majority Holders, as
provided herein. Not later than the due date for filing with the SEC (determined without regard to
any extension thereof permitted by the SEC) the Company’s Quarterly Report on Form 10-Q (in the
case of the first three calendar quarters of each year) or the Company’s Annual Report on Form 10-K
(in the case of the fourth calendar quarter of each year), and within five Business Day after a
request therefor made by notice to the Company from the Majority Holders, the Company shall furnish
to the Holder a Company Certificate, signed by the Company’s Chief Financial Officer or Chief
Executive Officer, setting forth the amount of the Company’s Cash and Cash Equivalents Balances as
of the end of such calendar quarter or as of the date of such notice, as the case may be. Each
Company Certificate delivered pursuant to this Section 3(m) shall state (1) the amount of the
Company’s Cash and Cash Equivalents Balances and the date as of which such amount has been
determined, (2) separately, the amount of cash and the amount of cash equivalents included in the
amount of Cash and Cash Equivalents Balances shown in such Company Certificate and (3) that the
amount of Cash and Cash Equivalents Balances stated in such Company Certificate has been determined
in accordance with the terms of this Note. If necessary in order to avoid furnishing the Holder
information that, for purposes of the 1934 Act, would be considered to be material non-public
information if not publicly disclosed, at the time the Company furnishes each Company Certificate
to the Holder the Company shall make an appropriate public announcement disclosing the information
contained in such Company Certificate relating to the Cash and Cash Equivalents Balances. Nothing






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in this Section 3(m) shall entitle the Company to release of any of the Collateral
from the lien of the Security Agreement.




          (n) Rule 144A Information Requirement. Within the period prior to the expiration of the
holding period applicable to sales hereof under Rule 144(k) under the 1933 Act (or any successor
provision), the Company shall, during any period in which it is not subject to Section 13 or 15(d)
under the 1934 Act, make available to the Holder and any prospective purchaser of this Note from
the Holder, the information required pursuant to Rule 144A(d)(4) under the 1933 Act upon the
request of the Holder and it will take such further action as the Holder may reasonably request,
all to the extent required from time to time to enable the Holder to sell this Note without
registration under the 1933 Act within the limitations of the exemption provided by Rule 144A, as
Rule 144A may be amended from time to time. Upon the request of the Holder, the Company will
deliver to the Holder a written statement as to whether it has complied with such requirements.




          (o) Certain Public Disclosures and Reporting. (1) Prior to giving the first Share Redemption
Notice, the Company shall make public disclosure by a press release disseminated in accordance with
the requirements of Nasdaq of the Company’s intention to retire the aggregate amount of this Note
and the Other Note stated in such press release through Share Redemptions by a date specified in
such press release. From time to time thereafter, the Company shall, by timely press release
announcement likewise distributed, publicly announce any material change in the content of such
press release. Each such press release shall be filed by the Company with the SEC as an exhibit to
a Current Report on Form 8-K not later than four Trading Days after the Company issues such press
release (or such shorter period as specified in the Purchase Agreement or required by applicable
law or regulation or the rules or requirements of the Principal Market at the time).




          (2) Within four Trading Days after each Share Redemption Date (or such shorter period as
required by applicable law or regulation or the rules or requirements of the Principal Market at
the time), the Company shall file a Current Report on Form 8-K reporting the aggregate principal
amount of this Note and the Other Note redeemed pursuant to Section 2(c) hereof and thereof and the
aggregate number of shares of Common Stock issued in redemption of this Note and the Other Note on
such Share Redemption Date.




          Section 4. Events of Default.




          (a) If any of the following events of default (each, an “Event of Default”) shall occur:





     (1) Failure to Pay Principal, Interest, Etc. The Company fails



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(1) to pay the
principal, the Optional Redemption Consideration or the
Repurchase Price hereof when due, whether at maturity, upon acceleration, as required by
Section 2(d)(2) or otherwise, as applicable, or (2) to pay any installment of interest
hereon when due and, in the case of this clause (2) of this Section 4(a)(1) only, such
failure continues for a period of five Business Days after the due date thereof; or




     (2) Conversion and the Shares. The Company fails to issue or cause to be issued and
delivered shares of Common Stock to the Holder or the holder of any Other Note upon exercise
of the conversion or purchase rights of the Holder or such holder or upon redemption of this
Note or any Other Note pursuant to Section 2(c) hereof or thereof within two Trading Days
after the due date therefor in accordance with the terms of this Note, any Other Note, or
any Warrant or fails to transfer any certificate for any such shares of Common Stock or any
shares of Common Stock issued in payment of interest on this Note or any Other Note as and
when required by this Note and the Purchase Agreement or any Other Note and the applicable
Other Purchase Agreement, as the case may be, except to the extent, and only to the extent
in any particular instance such issuance of transfer by such date is expressly excused by
the specific terms of the Transaction Documents; or




     (3) Breach of Certain Covenants. The Company fails to comply with Section 3(a), (g),
(h), (i), (k), (l), (m) or (o); or




     (4) Breach of Other Covenants. The Company fails to comply in any material respect
with any other provision of Section 3 of this Note (other than as specified in the
immediately preceding clause (3)) or breaches any other material covenant or other material
term or condition of this Note or any of the other Transaction Documents (other than as
specifically provided in clauses (1), (2) and (3) of this Section 4(a)), and such breach
continues for a period of 15 days after written notice thereof to the Company from the
Holder; or




     (5) Breach of Representations and Warranties. Any representation or warranty of the
Company made herein or in any other Transaction Document or in any written agreement,
certificate or instrument made pursuant hereto or thereto or in connection herewith or
therewith shall be false or misleading in any material respect when made; or




     (6) Certain Voluntary Proceedings. The Company or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver, liquidator, custodian



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or other similar official of it or any substantial part of its property, or shall
consent to any such relief or to the appointment of or taking possession by any such
official in an involuntary case or other proceeding commenced against it, or shall make a
general assignment for the benefit of creditors, or shall fail generally to pay its debts as
they become due or shall admit in writing its inability generally to pay its debts as they
become due; or




     (7) Certain Involuntary Proceedings. An involuntary case or other proceeding shall be
commenced against the Company or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a trustee, receiver, liquidator,
custodian or other similar official of it or any substantial part of its property, and such
involuntary case or other proceeding shall remain undismissed and unstayed for a period of
60 consecutive days; or




     (8) Judgments. Any court of competent jurisdiction shall enter one or more final
judgments against the Company or any Subsidiary or any of their respective properties or
other assets in an aggregate amount in excess of $500,000, which is or are not vacated,
bonded, stayed, discharged, satisfied or waived for a period of 30 consecutive days; or




     (9) Default Under Other Agreements. (a) The Company or any Subsidiary shall (i)
default in any payment with respect to any Indebtedness for borrowed money (other than this
Note) which Indebtedness has an outstanding principal amount in excess of $250,000
individually or $750,000 in the aggregate for all such Indebtedness, beyond the period of
grace, if any, provided in the instrument or agreement under which such Indebtedness was
created or (ii) default in the observance or performance of any agreement, covenant or
condition relating to any such Indebtedness or contained in any instrument or agreement
evidencing, securing or relating thereto, or any other event shall occur or condition exist,
the effect of which default or other event or condition is to cause, or to permit the holder
or holders of such Indebtedness (or a trustee or agent on behalf of such holder or holders)
to cause, any such Indebtedness to become due prior to its stated maturity and such default
or event shall continue beyond the period of grace, if any, provided in the instrument or
agreement under which such Indebtedness was created (after giving effect to any consent or
waiver obtained and then in effect thereunder) and such default shall continue for five days
(or to such earlier date as the holder of any other Indebtedness shall declare the same due
and payable by reason of such default; or (b) any Indebtedness of the Company or any
Subsidiary which has an outstanding principal amount in excess of the $250,000 individually
or $750,000 in the aggregate for all such Indebtedness shall, in accordance with its terms,
be declared to be due and



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payable, or required to be prepaid other than by a regularly
scheduled or
required payment prior to the stated maturity thereof; or




     (10) Security Agreement. The occurrence of any “Event of Default” as defined in the
Security Agreement;


then, upon the occurrence and during the continuation of any Event of Default specified in clause
(1), (2), (3), (4), (5), (8), (9) or (10) of this Section 4(a), at the option of the Holder, and
upon the occurrence of any Event of Default specified in clause (6) or (7) of this Section 4(a):
(W) the Company shall, pay to the Holder an amount equal to the greater of (A) the sum of (i) 110%
of the outstanding principal amount of this Note plus (ii) accrued and unpaid interest on such
principal amount to the date of payment plus (iii) accrued and unpaid interest, if any, at the
Default Rate on the amount referred to in the immediately preceding clause (ii) to the date of
payment and (B) the product obtained by multiplying (1) the highest Current Market Price of the
Common Stock on any Trading Day from and including the Trading Day immediately preceding the date
the Event of Default occurs to the date of payment, times (2) the number of shares of Common Stock
which would be issuable upon conversion of the principal amount of this Note (and interest thereon
as provided in Section 6(a)) (determined without regard to any limitation on conversion contained
in Section 6) if such conversion were made on the date for which, pursuant to the immediately
preceding clause (1), the Current Market Price is used for the computation of the payment pursuant
to this paragraph, (X) all other amounts payable by the Company hereunder or under any of the other
Transaction Documents shall immediately become due and payable, all without demand, presentment or
notice, all of which hereby are expressly waived, together with all costs, including, without
limitation, reasonable legal fees and expenses, of collection, (Y) the Collateral Agent shall be
entitled to exercise all rights and remedies under the Security Agreement and all other rights and
remedies available at law or in equity and (Z) the Holder shall be entitled to exercise all other
rights and remedies available at law or in equity.




          Section 5. Repurchase Upon a Repurchase Event.




          (a) Repurchase Right Upon Repurchase Event. If a Repurchase Event occurs, in addition to any
other right of the Holder, the Holder shall have the right, at the Holder’s option, to require the
Company to repurchase all of this Note, or any portion hereof selected by the Holder, at a price
equal to the Repurchase Price on the repurchase date that is five Business Days after the date of
the Holder Notice delivered with respect to such Repurchase Event. If the Holder exercises its
right to require repurchase of less than all of the outstanding principal amount of this Note, the
Holder may specify the manner in which the principal amount repurchased shall be allocated among
the outstanding installments of principal.





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     (b) Notices; Method of Exercising Repurchase Rights, Etc. (1)
On or before the fifth Business Day after the occurrence of a Repurchase Event, the Company shall
give to the Holder a Company Notice of the occurrence of the Repurchase Event and of the repurchase
right set forth herein arising as a result thereof. Such Company Notice shall set forth:




     (i) the date by which the repurchase right must be exercised, and




     (ii) a description of the procedure (set forth in this Section 5(b)) which the Holder
must follow to exercise the repurchase right.


No failure of the Company to give a Company Notice or defect therein shall limit the Holder’s right
to exercise the repurchase right or affect the validity of the proceedings for the repurchase of
this Note or portion hereof.




          (2) To exercise the repurchase right, the Holder shall deliver to the Company on or before the
30th day after a Company Notice (or if no such Company Notice has been given, within 40 days after
the Holder first actually (and not merely constructively) learns of the Repurchase Event) (i) a
Holder Notice setting forth the name of the Holder and the principal amount of this Note to be
repurchased, which amount may be allocated among the installments of principal outstanding at such
time as determined by the Holder in its sole discretion, and (ii) this Note, duly endorsed for
transfer to the Company of the portion of the outstanding principal amount of this Note to be
repurchased. A Holder Notice may be revoked by the Holder at any time prior to the time the
Company pays the applicable Repurchase Price to the Holder.




          (3) If the Holder shall have given a Holder Notice, then on the date which is five Business
Days after the date such Holder Notice is given (or such later date as the Holder surrenders this
Note) the Company shall make payment in immediately available funds of the applicable Repurchase
Price to such account as specified by the Holder in writing to the Company at least one Business
Day prior to the applicable repurchase date.




          (c) Other. A Holder Notice given by the Holder shall be deemed for all purposes to be in
proper form unless the Company notifies the Holder within three Business Days after the Holder
gives such Holder Notice (which notice from the Company shall specify all defects in such Holder
Notice), and any Holder Notice containing any such defect shall nonetheless be effective on the
date given if the Holder promptly undertakes to correct all such defects. No such claim of defect
shall limit or delay performance of the Company’s obligation to repurchase any portion of this Note
the repurchase of which is not in dispute.




-47-









 








          Section 6. Conversion.




          (a) Right to Convert. Subject to and upon compliance with the provisions of this Note, the
Holder shall have the right, at the Holder’s option, at any time prior to the close of business on
the Final Maturity Date (except that, if the Holder shall have exercised repurchase rights under
Sections 5(a) and 5(b) or the Company shall have exercised its redemption rights under Section
2(b), such conversion right shall terminate with respect to the portion of this Note to be
repurchased or redeemed, as the case may be, at the close of business on the last Trading Day prior
to the later of (x) the Optional Redemption Date or the date the Company is required to make such
repurchase, as the case may be, and (y) the date the Company pays or deposits in accordance with
Section 7(k) the applicable Repurchase Price or Optional Redemption Consideration unless in any
such case the Company shall default in payment due upon repurchase or redemption hereof) to convert
the principal amount of this Note, or any portion of such principal amount which is at least
$10,000 (or such lesser principal amount of this Note as shall be outstanding at such time), plus
accrued and unpaid interest, into that number of fully paid and non-assessable shares of Common
Stock (as such shares shall then be constituted) obtained by dividing (1) the sum of (x) the
principal amount of this Note or portion thereof being converted plus (y) accrued and unpaid
interest on the portion of the principal amount of this Note being converted to the applicable
Conversion Date plus (z) accrued and unpaid interest, if any, at the Default Rate on the amount
referred to in the immediately preceding clause (y) to the applicable Conversion Date by (2) the
Conversion Price in effect on the applicable Conversion Date, by giving a Conversion Notice in the
manner provided in Section 6(b); provided, however, that, if at any time this Note is converted in
whole or in part pursuant to this Section 6(a), the Company does not have available for issuance
upon such conversion as authorized and unissued shares or in its treasury at least the number of
shares of Common Stock required to be issued pursuant hereto, then, at the election of the Holder
made by notice from the Holder to the Company, this Note (or portion hereof as to which conversion
has been requested), to the extent that sufficient shares of Common Stock are not then available
for issuance upon conversion, shall be converted into the right to receive from the Company, in
lieu of the shares of Common Stock into which this Note or such portion hereof would otherwise be
converted and which the Company is unable to issue, payment in an amount equal to the product
obtained by multiplying (x) the number of shares of Common Stock which the Company is unable to
issue times (y) the arithmetic average of the Market Price for the Common Stock during the five
consecutive Trading Days immediately prior to the applicable Conversion Date. Any such payment
shall, for all purposes of this Note, be deemed to be a payment of principal plus a premium equal
to the total amount payable less the principal portion of this Note converted as to which such
payment is required to be made because shares of Common Stock are not then available for issuance
upon such conversion. The Holder is not entitled to any rights of a holder of Common Stock




-48-









 







until the Holder has converted this Note to Common Stock, and only to the extent this Note is
deemed to have been converted to Common Stock under this Section 6. For purposes of Sections 6(e)
and 6(f), whenever a provision references the shares of Common Stock into which this Note (or a
portion hereof) is convertible or the shares of Common Stock issuable upon conversion of this Note
(or a portion hereof) or words of similar import, any determination required by such provision
shall be made as if a sufficient number of shares of Common Stock were then available for issuance
upon conversion in full of this Note.




          (b) Exercise of Conversion Right; Issuance of Common Stock on Conversion; No Adjustment for
Interest or Dividends. (1) In order to exercise the conversion privilege with respect to this
Note, the Holder shall give a Conversion Notice (or such other notice which is acceptable to the
Company) to the Company or to the office or agency designated by the Company for such purpose by
notice to the Holder. A Conversion Notice may be given by telephone line facsimile transmission to
the numbers set forth on the form of Conversion Notice. In connection with any conversion of this
Note, the Holder may allocate such conversion among the outstanding installments of principal as
determined by the Holder in its sole discretion, as set forth in a particular Conversion Notice.




          (2) As promptly as practicable, but in no event later than three Trading Days, after a
Conversion Notice is given, the Company shall issue and shall deliver to the Holder or the Holder’s
designee the number of full shares of Common Stock issuable upon such conversion of this Note or
portion hereof in accordance with the provisions of this Section 6 and deliver a check or cash in
respect of any fractional interest in respect of a share of Common Stock arising upon such
conversion, as provided in Section 6(b)(6) and, if applicable, any cash payment required pursuant
to the proviso to the first sentence of Section 6(a) (which payment, if any, shall be paid no later
than three Trading Days after the applicable Conversion Date). In lieu of delivering physical
certificates for the shares of Common Stock issuable upon any conversion of this Note, provided the
Transfer Agent is participating in FAST, upon request of the Holder, the Company shall use
commercially reasonable efforts to cause the Transfer Agent electronically to transmit such shares
of Common Stock issuable upon conversion to the Holder (or its designee), by crediting the account
of the Holder’s (or such designee’s) broker or other participant with DTC through DWAC (provided
that the same time periods herein as for stock certificates shall apply).




          (3) Each conversion of this Note (or portion hereof) shall be deemed to have been effected on
the applicable Conversion Date, and the person in whose name any certificate or certificates for
shares of Common Stock shall be issuable upon such conversion shall be deemed to have become on
such Conversion Date the holder of record of the shares represented thereby; provided, however,
that if a Conversion Date is a date on which the stock transfer books of the Company shall




-49-









 







be closed such conversion shall constitute the person in whose name the certificates are to be
issued as the record holder thereof for all purposes on the next succeeding day on which such stock
transfer books are open, but such conversion shall be at the Conversion Price in effect on the
applicable Conversion Date. Upon conversion of this Note or any portion hereof, the accrued and
unpaid interest on this Note (or portion hereof) to (but excluding) the applicable Conversion Date
shall be deemed to be paid to the Holder of this Note through receipt of such number of shares of
Common Stock issued upon conversion of this Note or portion hereof as shall have an aggregate
Current Market Price on the Trading Day immediately preceding such Conversion Date equal to the
amount of such accrued and unpaid interest.




          (4) The Company shall notify the Holder of any claim by the Company of manifest error in a
Conversion Notice within two Trading Days after the Holder gives such Conversion Notice and no such
claim of error shall limit or delay performance of the Company’s obligation to issue upon such
conversion the number of shares of Common Stock which are not in dispute. A Conversion Notice shall
be deemed for all purposes to be in proper form unless the Company notifies the Holder by telephone
line facsimile transmission within two Trading Days after a Conversion Notice has been given (which
notice from the Company shall specify all defects in the Conversion Notice) and any Conversion
Notice containing any such defect shall nonetheless be effective on the date given if the Holder
promptly undertakes to correct all such defects and in due course in fact corrects such defects.
The Company shall not be required to pay any tax which may be payable in respect of any transfer
involved in the issuance and delivery of shares of Common Stock or other securities or property on
conversion of this Note in a name other than that of the Holder, and the Company shall not be
required to issue or deliver any such shares or other securities or property unless and until the
person or persons requesting the issuance thereof shall have paid to the Company the amount of any
such tax or shall have established to the satisfaction of the Company that such tax has been paid.
The Holder shall be responsible for the amount of any income or withholding tax payable in
connection with any conversion of this Note.




          (5) (A) If the Holder shall have given a Conversion Notice in accordance with the terms of
this Note, the Company’s obligation to issue and deliver the shares of Common Stock upon such
conversion n the term sand subject to the conditions of this Note shall be absolute and
unconditional, irrespective of any action or inaction by the Holder to enforce the same, any waiver
or consent with respect to any provision hereof, the recovery of any judgment against any Person or
any action to enforce the same, any failure or delay in the enforcement of any other obligation of
the Company to the Holder, or any setoff, counterclaim, recoupment, limitation or termination, or
any breach or alleged breach by the Holder or any other person of any obligation to the Company or
any violation or alleged violation of law by the Holder or any other person, and irrespective of
any other circumstance which might otherwise limit such obligation of the Company to the Holder in




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connection with such conversion; provided, however, that nothing herein shall limit or prejudice
the right of the Company to pursue any such claim in any other manner permitted by applicable law.
The occurrence of an event which requires an adjustment of the Conversion Price as contemplated by
Section 6(c) shall in no way restrict or delay the right of the Holder to receive certificates for
Common Stock upon conversion of this Note and the Company shall use its best efforts to implement
such adjustment on terms reasonably acceptable to the Holder not later than three Trading Days
after such occurrence. Any such adjustment shall take effect on the date provided herein
regardless of when the Company implements such adjustment, the Holder shall be entitled to the
benefits of such adjustment from the time it takes effect and any implementation thereof by the
Company after the date such adjustment takes effect shall be applied retroactively to the date such
adjustment takes effect.




          (B) If in any case the Company shall fail to issue and deliver the shares of Common Stock to
the Holder in connection with a particular conversion of this Note within three Trading Days after
the Holder gives the Conversion Notice for such conversion, in addition to any other liabilities
the Company may have hereunder and under applicable law (i) the Company shall pay or reimburse the
Holder on demand for all out-of-pocket expenses, including, without limitation, reasonable fees and
expenses of legal counsel, incurred by the Holder as a result of such failure, (ii) if as a result
of such failure the Holder shall suffer any direct damages or liabilities from such failure
(including, without limitation, margin interest and the cost of purchasing securities to cover a
sale (whether by the Holder or the Holder’s securities broker) or borrowing of shares of Common
Stock by the Holder for purposes of settling any trade involving a sale of shares of Common Stock
made by the Holder during the period beginning on the Issuance Date and ending on the date the
Company delivers or causes to be delivered to the Holder such shares of Common Stock), then the
Company shall upon demand of the Holder pay to the Holder an amount equal to the actual direct,
out-of-pocket damages and liabilities suffered by the Holder by reason thereof which the Holder
documents to the reasonable satisfaction of the Company, and (iii) the Holder may by written notice
(which may be given by mail, courier, personal service or telephone line facsimile transmission) or
oral notice (promptly confirmed in writing), given at any time prior to delivery to the Holder of
the shares of Common Stock issuable in connection with such exercise of the Holder’s conversion
right, rescind such exercise and the Conversion Notice relating thereto, in which case the Holder
shall thereafter be entitled to convert that portion of this Note as to which such exercise is so
rescinded and to exercise its other rights and remedies with respect to such failure by the
Company. Notwithstanding the foregoing the Company shall not be liable to the Holder under clause
(ii) of the immediately preceding sentence to the extent the failure of the Company to deliver or
to cause to be delivered such shares of Common Stock results from fire, flood, storm, earthquake,
shipwreck, strike, war, acts of terrorism, crash involving facilities of a common carrier, acts of
God, or any




-51-









 







similar event outside the control of the Company (it being understood that the action or failure to
act of the Transfer Agent shall not be deemed an event outside the control of the Company except to
the extent resulting from fire, flood, storm, earthquake, shipwreck, strike, war, acts of
terrorism, crash involving facilities of a common carrier, acts of God, or any similar event
outside the control of the Transfer Agent or the bankruptcy, liquidation or reorganization of the
Transfer Agent under any bankruptcy, insolvency or other similar law). In the case of the Company’s
failure to issue and deliver or cause to be delivered the shares of Common Stock to the Holder
within three Trading Days of a particular conversion of this Note, the amount payable by the
Company pursuant to this clause (B) of Section 6(b)(5) with respect to such conversion shall be
reduced by the amount of Conversion Delay Payments previously paid by the Company to the Holder
with respect to such conversion. The Holder shall notify the Company in writing (or by telephone
conversation, confirmed in writing) as promptly as practicable following the third Trading Day
after the Holder gives a Conversion Notice if the Holder becomes aware that such shares of Common
Stock so issuable have not been received as provided herein, but any failure so to give such notice
shall not affect the Holder’s rights under this Note or otherwise. If the Holder shall have
exercised the conversion right in any particular instance and either (1) the Company shall notify
the Holder on or after such exercise that the shares of Common Stock issuable upon such conversion
might not be delivered within three Trading Days after the date the Holder gives such Conversion
Notice or (2) the Holder learns after the date which is three Trading Days after the date the
Holder gives such Conversion Notice that the Holder has not received such shares of Common Stock,
then, without releasing the Company of its obligations with respect thereto, from and after the
Trading Day next succeeding the earlier of the events described in the preceding clauses (1) and
(2) of this sentence the Holder shall make reasonable efforts not to sell shares of Common Stock in
anticipation of receipt of such shares of Common Stock in a manner which is likely to increase
materially the liability of the Company under clause (ii) of the first sentence of this clause (B)
of Section 6(b)(5).




          (C) If the Company fails to deliver or cause to be delivered to the Holder such shares of
Common Stock pursuant to this Section 6 (free of any restrictions on transfer or legends except to
the extent permitted under Section 6.11 of the Purchase Agreement) in accordance herewith, within
five Trading Days after a particular conversion of this Note, then, in addition to any other
liability the Company may have, the Company shall pay to the Holder, in cash, upon demand of the
Holder from time to time an amount, computed at the rate of 2% per month of the VWAP of the Common
Stock multiplied by the number of shares of Common Stock not timely delivered by the Company, for
each day in the period such failure continues (the “Conversion Delay Payments”), without
duplication of any amount payable to the Holder pursuant to clause (F) of Section 2(c)(i) of the
Registration Rights Agreement, with each change in the VWAP of the Common Stock during such period
being given effect. Such payments shall be made on the last day of each




-52-









 







calendar month so long as the Company’s obligation to make such payments continues and on the date
the Company makes such delivery of such shares of Common Stock.




          (6) No fractional shares of Common Stock shall be issued upon conversion of this Note but, in
lieu of any fraction of a share of Common Stock which would otherwise be issuable in respect of
such conversion, the Company may round the number of shares of Common Stock issued on such
conversion up to the next highest whole share or may pay lawful money of the United States of
America for such fractional share, based on a value of one share of Common Stock being equal to the
Market Price of the Common Stock on the applicable Conversion Date.




          (c) Adjustment of Conversion Price. The Conversion Price shall be adjusted from time to time
by the Company as follows:




          (1) Adjustments for Certain Dividends and Distributions in Common Stock. In case the Company
shall on or after the Issuance Date pay a dividend or make a distribution to all holders of the
outstanding Common Stock in shares of Common Stock, the Conversion Price in effect at the opening
of business on the date following the date fixed for the determination of stockholders entitled to
receive such dividend or other distribution shall be reduced by multiplying such Conversion Price
by a fraction of which the numerator shall be the number of shares of Common Stock outstanding at
the close of business on the Record Date fixed for such determination and the denominator shall be
the sum of such number of shares and the total number of shares constituting such dividend or other
distribution, such reduction to become effective immediately after the opening of business on the
day following the Record Date. If any dividend or distribution of the type described in this
Section 6(c)(1) is declared but not so paid or made, the Conversion Price shall again be adjusted
to the Conversion Price which would then be in effect if such dividend or distribution had not been
declared.




          (2) Weighted Adjustments for Certain Issuances of Rights or Warrants. In case the Company
shall on or after the Issuance Date issue rights or warrants (other than any rights or warrants
referred to in Section 6(c)(4) to all holders of its outstanding shares of Common Stock entitling
them (for a period expiring within 45 days after the date fixed for the determination of
stockholders entitled to receive such rights or warrants) to subscribe for or purchase shares of
Common Stock at a price per share less than the Current Market Price on the Record Date fixed for
the determination of stockholders entitled to receive such rights or warrants, the Conversion Price
shall be adjusted so that the same shall equal the price determined by multiplying the Conversion
Price in effect at the opening of business on the date after such Record Date by a fraction of
which the numerator shall be the number of shares of Common Stock outstanding at the close of
business on the Record Date plus the number of shares which the aggregate




-53-









 







offering price of the total number of shares so offered would purchase at such Current Market
Price, and the denominator shall be the number of shares of Common Stock outstanding on the close
of business on the Record Date plus the total number of additional shares of Common Stock so
offered for subscription or purchase. Such adjustment shall become effective immediately after the
opening of business on the day following the Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common Stock are not
delivered pursuant to such rights or warrants, upon the expiration or termination of such rights or
warrants, the Conversion Price shall be readjusted to the Conversion Price which would then be in
effect had the adjustments made upon the issuance of such rights or warrants been made on the basis
of delivery of only the number of shares of Common Stock actually delivered. In the event that such
rights or warrants are not so issued, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed. In determining whether
any rights or warrants entitle the holder to subscribe for or purchase shares of Common Stock at
less than such Current Market Price, and in determining the aggregate offering price of such shares
of Common Stock, there shall be taken into account any consideration received for such rights or
warrants, the value of such consideration, if other than cash, to be determined by the Board of
Directors.




          (3) Adjustments for Certain Subdivisions of the Common Stock. In case the outstanding shares
of Common Stock shall on or after the Issuance Date be subdivided into a greater number of shares
of Common Stock, the Conversion Price in effect at the opening of business on the earlier of the
day following the day upon which such subdivision becomes effective and the day on which “ex-”
trading of the Common Stock begins with respect to such subdivision shall be proportionately
reduced, and conversely, in case outstanding shares of Common Stock shall be combined into a
smaller number of shares of Common Stock, the Conversion Price in effect at the opening of business
on the earlier of the day following the day upon which such combination becomes effective and the
day on which “ex-” trading of the Common Stock with respect to such combination begins shall be
proportionately increased, such reduction or increase, as the case may be, to become effective
immediately after the opening of business on the earlier of the day following the day upon which
such subdivision or combination becomes effective and the day on which “ex-” trading of the Common
Stock begins with respect to such subdivision or combination.




          (4) Adjustments for Certain Dividends and Distributions. In case the Company shall on or
after the Issuance Date, by dividend or otherwise, distribute to all holders of its Common Stock
shares of any class of capital stock of the Company (other than any dividends or distributions to
which Section 6(c)(1) applies) or evidences of its indebtedness, cash or other assets (including
securities,




-54-









 







but excluding any rights or warrants referred to in Section 6(c)(2) and dividends and distributions
paid exclusively in cash and excluding any capital stock, evidences of indebtedness, cash or assets
distributed upon a merger or consolidation to which Section 6(e) applies) (the foregoing
hereinafter in this Section 6(c)(4) called the “Securities”)), then, in each such case, subject to
the second paragraph of this Section 6(c)(4), the Conversion Price shall be reduced so that the
same shall be equal to the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on the Record Date with respect to such distribution by
a fraction of which the numerator shall be the Current Market Price on such date less the fair
market value (as determined by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of the Securities so distributed
applicable to one share of Common Stock and the denominator shall be such Current Market Price,
such reduction to become effective immediately prior to the opening of business on the day
following the Record Date; provided, however, that in the event the then fair market value (as so
determined) of the portion of the Securities so distributed applicable to one share of Common Stock
is equal to or greater than the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that the Holder shall have the right to receive
upon conversion of this Note (or any portion hereof) the amount of Securities the Holder would have
received had the Holder converted this Note (or portion hereof) immediately prior to such Record
Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in effect if such dividend
or distribution had not been declared. If the Board of Directors determines the fair market value
of any distribution for purposes of this Section 6(c)(4) by reference to the actual or when issued
trading market for any Securities comprising all or part of such distribution, it must in doing so
consider the prices in such market over the same period used in computing the Current Market Price,
to the extent possible.




          Rights or warrants distributed by the Company to all holders of Common Stock entitling the
holders thereof to subscribe for or purchase shares of the Company’s capital stock (either
initially or under certain circumstances), which rights or warrants, until the occurrence of a
specified event or events (a “Trigger Event”): (i) are deemed to be transferred with such shares of
Common Stock; (ii) are not exercisable; and (iii) are also issued in respect of future issuances of
Common Stock, shall not be deemed to have been distributed for purposes of this Section 6(c) (and
no adjustment to the Conversion Price under this Section 6(c) will be required) until the
occurrence of the earliest Trigger Event. If any such rights or warrants, including any such
existing rights or warrants distributed prior to the Issuance Date, are subject to Trigger Events,
upon the satisfaction of each of which such rights or warrants shall become exercisable to purchase
different securities, evidences of indebtedness or other assets, then the occurrence of each such
Trigger Event shall be deemed to be such date of issuance and record date with respect to




-55-









 







new rights or warrants (and a termination or expiration of the existing rights or warrants without
exercise by the holder thereof) (so that, by way of illustration and not limitation, the dates of
issuance of any such rights shall be deemed to be the dates on which such rights become exercisable
to purchase capital stock of the Company, and not the date on which such rights may be issued, or
may become evidenced by separate certificates, if such rights are not then so exercisable). In
addition, in the event of any distribution of rights or warrants, or any Trigger Event with respect
thereto, that was counted for purposes of calculating a distribution amount for which an adjustment
to the Conversion Price under this Section 6(c) was made (1) in the case of any such rights or
warrants which shall all have been redeemed or repurchased without exercise by any holders thereof,
the Conversion Price shall be readjusted upon such final redemption or repurchase to give effect to
such distribution or Trigger Event, as the case may be, as though it were a cash distribution,
equal to the per share redemption or repurchase price received by a holder or holders of Common
Stock with respect to such rights or warrants (assuming such holder had retained such rights or
warrants), made to all holders of Common Stock as of the date of such redemption or repurchase, and
(2) in the case of such rights or warrants which shall have expired or been terminated without
exercise by any holders thereof, the Conversion Price shall be readjusted as if such rights and
warrants had not been issued.




          For purposes of this Section 6(c)(4) and Sections 6(c)(1) and (2), any dividend or
distribution to which this Section 6(c)(4) is applicable that also includes shares of Common Stock,
or rights or warrants to subscribe for or purchase shares of Common Stock to which Section 6(c)(2)
applies (or both), shall be deemed instead to be (1) a dividend or distribution of the evidences of
indebtedness, assets, shares of capital stock, rights or warrants other than such shares of Common
Stock or rights or warrants to which Section 6(c)(2) applies (and any Conversion Price reduction
required by this Section 6(c)(4) with respect to such dividend or distribution shall then be made)
immediately followed by (2) a dividend or distribution of such shares of Common Stock or such
rights or warrants (and any further Conversion Price reduction required by Sections 6(c)(1) and (2)
with respect to such dividend or distribution shall then be made), except (A) the Record Date of
such dividend or distribution shall be substituted as “the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution”, “Record Date fixed for such
determination” and “Record Date” within the meaning of Section 6(c)(1) and as “the date fixed for
the determination of stockholders entitled to receive such rights or warrants”, “the Record Date
fixed for the determination of the stockholders entitled to receive such rights or warrants” and
“such Record Date” within the meaning of Section 6(c)(2) and (B) any shares of Common Stock
included in such dividend or distribution shall not be deemed “outstanding at the close of business
on the Record Date fixed for such determination” within the meaning of Section 6(c)(1).




-56-









 








          (5) Adjustments for Certain Cash Dividends. In case the Company shall on or after the
Issuance Date, by dividend or otherwise, distribute to all holders of its Common Stock cash
(excluding any cash that is distributed upon a merger or consolidation to which Section 6(d)
applies or as part of a distribution referred to in Section 6(c)(4) in an aggregate amount that,
combined with (1) the aggregate amount of any other such distributions to all holders of its Common
Stock made exclusively in cash within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to this Section 6(c)(5) has been made,
and (2) the aggregate of any cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and set forth in a Board Resolution) of
consideration payable in respect of any Tender Offer by the Company or any Subsidiary for all or
any portion of the Common Stock concluded within the 12 months preceding the date of payment of
such distribution, and in respect of which no adjustment pursuant to Section 6(c)(6) has been made,
exceeds one percent of the product of (x) the Current Market Price on the Record Date with respect
to such distribution times (y) the number of shares of Common Stock outstanding on such date, then,
and in each such case, immediately after the close of business on such date, unless the Company
elects to reserve such cash for distribution to the Holder upon the conversion of this Note (and
shall have made adequate provision) so that the Holder will receive upon such conversion, in
addition to the shares of Common Stock to which the Holder is entitled, the amount of cash which
the Holder would have received if the Holder had, immediately prior to the Record Date for such
distribution of cash, converted this Note into Common Stock, the Conversion Price shall be reduced
so that the same shall equal the price determined by multiplying the Conversion Price in effect
immediately prior to the close of business on such Record Date by a fraction (i) the numerator of
which shall be equal to the Current Market Price on the Record Date less an amount equal to the
quotient of (x) the excess of such combined amount over such one percent and (y) the number of
shares of Common Stock outstanding on the Record Date and (ii) the denominator of which shall be
equal to the Current Market Price on the Record Date; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Common Stock is equal to or greater
than the Current Market Price of the Common Stock on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that the Holder shall have the right to receive
upon conversion of this Note (or any portion hereof) the amount of cash the Holder would have
received had the Holder converted this Note (or portion hereof) immediately prior to such Record
Date. In the event that such dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in effect if such dividend
or distribution had not been declared.




          (6) Adjustments for Certain Tender Offers. In case a Tender Offer on or after the Issuance
Date made by the Company or any Subsidiary for all or any portion of the Common Stock shall expire
and such Tender Offer (as




-57-









 







amended upon the expiration thereof) shall require the payment to stockholders (based on the
acceptance (up to any maximum specified in the terms of the Tender Offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and described in a Board Resolution)
that combined together with (1) the aggregate of the cash plus the fair market value (as determined
by the Board of Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such Tender Offer, of consideration payable in respect of any
other Tender Offers, by the Company or any Subsidiary for all or any portion of the Common Stock
expiring within the 12 months preceding the expiration of such Tender Offer and in respect of which
no adjustment pursuant to this Section 6(c)(6) has been made and (2) the aggregate amount of any
distributions to all holders of the Company’s Common Stock made exclusively in cash within 12
months preceding the expiration of such Tender Offer and in respect of which no adjustment pursuant
to Section 6(c)(5) has been made, exceeds one percent of the product of (i) the Current Market
Price as of the last time (the “Expiration Time”) tenders could have been made pursuant to such
Tender Offer (as it may be amended) times (ii) the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time, then, and in each such case, immediately
prior to the opening of business on the day after the date of the Expiration Time, the Conversion
Price shall be adjusted so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to close of business on the date of the Expiration
Time by a fraction of which the numerator shall be the number of shares of Common Stock outstanding
(including any tendered shares) at the Expiration Time multiplied by the Current Market Price of
the Common Stock on the Trading Day next succeeding the Expiration Time and the denominator shall
be the sum of (x) the fair market value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum specified in the terms of the
Tender Offer) of all shares validly tendered and not withdrawn as of the Expiration Time (the
shares deemed so accepted, up to any such maximum, being referred to as the “Purchased Shares”) and
(y) the product of the number of shares of Common Stock outstanding (less any Purchased Shares) at
the Expiration Time and the Current Market Price of the Common Stock on the Trading Day next
succeeding the Expiration Time, such reduction (if any) to become effective immediately prior to
the opening of business on the day following the Expiration Time. In the event that the Company is
obligated to purchase shares pursuant to any such Tender Offer, but the Company is permanently
prevented by applicable law from effecting any such purchases or all such purchases are rescinded,
the Conversion Price shall again be adjusted to be the Conversion Price which would then be in
effect if such Tender Offer had not been made. If the application of this Section 6(c)(6) to any
Tender Offer would result in an increase in the Conversion Price, no adjustment shall be made for
such Tender Offer under this Section 6(c)(6).




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          (7) Adjustments for Certain Issuances of Newly Issued Shares. (A) In case at any time on or
after the Issuance Date the Company shall issue shares of its Common Stock or Common Stock
Equivalents (collectively, the “Newly Issued Shares”), other than an issuance pro rata to all
holders of its outstanding Common Stock, at a price per share of Common Stock below the Conversion
Price in effect immediately prior to such issuance, then following such issuance of Newly Issued
Shares, the Conversion Price shall be adjusted as provided in this Section 6(c)(7)(A). The
Conversion Price following any such adjustment shall be determined by multiplying the Conversion
Price immediately prior to such adjustment by a fraction, of which the numerator shall be the sum
of (a) the number of shares of Common Stock outstanding immediately prior to the issuance of the
Newly Issued Shares (calculated on a fully-diluted basis assuming the conversion of all options,
warrants, purchase rights or convertible securities which are exercisable at the time of the
issuance of the Newly Issued Shares) plus (b) the number of shares of Common Stock which the
aggregate consideration, if any, received by the Company for the number of Newly Issued Shares
would purchase at a price equal to the Conversion Price in effect immediately prior to such
issuance, and the denominator shall be the sum of (i) the number of shares of Common Stock
outstanding immediately prior to the issuance of the Newly Issued Shares (calculated on a
fully-diluted basis assuming the exercise or conversion of all options, warrants, purchase rights
or convertible securities which are exercisable or convertible at the time of the issuance of the
Newly Issued Shares) plus (ii) the number of Newly Issued Shares. The reduction in the Conversion
Price provided for in this Section 6(c)(7)(A) may be expressed as the following mathematical
formula:




	 	 	 	 	 	 	 
	 

	 	 	 	(O +(C/CP))
	  x CP	 
	 

	 	NCP =  
	 

( O + N )	 	 





where:




	 	 	 	 	 	 	 
	 

	 	C
	 	=
	 	aggregate consideration received by the Company for the Newly Issued Shares
	 
	 	 	 	 	 	 
	 

	 	N
	 	=
	 	number of Newly Issued Shares
	 
	 	 	 	 	 	 
	 

	 	O
	 	=
	 	number of shares of Common Stock outstanding (on a fully diluted basis, as
described above) immediately prior to the issuance of the Newly Issued Shares
	 
	 	 	 	 	 	 
	 

	 	CP
	 	=
	 	Conversion Price immediately prior to the issuance of the Newly Issued Shares
	 
	 	 	 	 	 	 
	 

	 	NCP
	 	=
	 	Conversion Price immediately after the issuance of the Newly Issued Shares






-59-









 






          (B) In case at any time on or after November 2, 2006, the Company shall issue Newly Issued
Shares, other than an issuance pro rata to all holders of its outstanding Common Stock, at a price
per share of Common Stock below the Conversion Price in effect immediately prior to such issuance,
then following such issuance of Newly Issued Shares the Conversion Price shall be adjusted as
provided in this Section 6(c)(7)(B) and no adjustment shall be made in respect of such issuance
under Section 6(c)(7)(A). The Conversion Price following any such adjustment shall be the price
per share of Common Stock reflected in the price at which such Newly Issued Shares are issued.




          (C) If the Newly Issued Shares are Common Stock Equivalents, then the price per share of
Common Stock at which the Newly Issued Shares shall be deemed issued shall be the price per share
of Common Stock at which the Newly Issued Shares are convertible into, exchangeable for, or
otherwise entitle the stockholder to acquire, Common Stock.




          (D) Notwithstanding the foregoing, no adjustment shall be made under this Section 6(c)(7) by
reason of:





     (i) the issuance by the Company of shares of Common Stock pro rata to all holders of
the Common Stock so long as (i) any adjustment to the Conversion Price that is required by
Section 6(c)(1) is made and (ii) the Company shall have given notice of such issuance
thereof to the Holder pursuant to Section 6(g);




     (ii) the issuance by the Company of Newly Issued Shares in an offering for cash for the
account of the Company that is underwritten on a firm commitment basis and is registered
with the SEC under the 1933 Act;




     (iii) the issuance by the Company of the Other Note or the Warrants or shares of Common
Stock upon conversion or redemption of this Note or the Other Note, in lieu of cash payment
of interest on this Note or the Other Note, or upon exercise of the Warrants, in each such
case in accordance with the terms hereof and thereof;




     (iv) the issuance by the Company of shares of Common Stock in lieu of cash payment of
interest on this Note and the Other Note in accordance with the terms hereof and thereof;




     (v) the issuance by the Company of Newly Issued Shares upon grant or exercise of
options for employees, directors and consultants under the Company’s 2003 Stock Compensation
Plan, 2004 Stock Option Plan, 2004 Directors’ Stock Option Plan or any other employee
benefit plan approved by the Board of Directors after the Issuance Date, or the issuance by
the



-60-









 






Company of shares of Common Stock to former employees in satisfaction of severance
obligations if such issuance has been approved by the Board of Directors;




     (vi) the issuance by the Company of Newly Issued Shares (x) to parties that are
suppliers, customers or strategic partners investing in connection with a commercial
relationship with the Company, the primary purpose of which issuance is not to raise
capital, or (y) as consideration for an Acquisition Transaction, excluding Acquisition
Transactions in which cash or cash equivalents represent more than 20 percent of the assets
acquired; provided that such issuances or deemed issuances pursuant to this clause (vi)
shall not exceed 500,000 shares of Common Stock (treating Common Stock Equivalents on an as
if converted or as if exercised basis for this purpose) in the aggregate (subject to
adjustment of such amount for stock splits, stock dividends, stock combinations or other
similar transactions after the Issuance Date);




     (vii) the issuance by the Company of Newly Issued Shares to the lessor or vendor in any
office lease or equipment lease or similar equipment financing transaction in which the
Company or any Subsidiary obtains the use of such office space or equipment for its
business; and




     (viii) the issuance by the Company of (A) Newly Issued Shares upon conversion or
exercise of Common Stock Equivalents outstanding on the date of the Purchase Agreement and
disclosed in the Purchase Agreement or the SEC Filings, in accordance with the terms thereof
in effect on the Issuance Date; or (B) shares of Common Stock in lieu of payment of
principal of or interest on the Secured Promissory Note, dated January 30, 2004, issued by
the Company to Aventis Inc. in the original principal amount of $3,000,000 in accordance
with the terms thereof in effect on the Issuance Date.



          (8) Additional Reductions in Conversion Price. The Company may make such reductions in the
Conversion Price, in addition to those required by Sections 6(c)(1), (2), (3), (4), (5), (6) and
(7), as the Board of Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as such for income tax
purposes.




          (9) De Minimus Adjustments. No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in such price; provided,
however, that any adjustments which by reason of this Section 6(c)(9) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment. All calculations




-61-









 







under this Section 6 shall be made by the Company and shall be made to the nearest cent or to the
nearest one hundredth of a share, as the case may be.




          No adjustment need be made for a change in the par value of the Common Stock or from par value
to no par value or from no par value to par value.




          (10) Company Notice of Adjustments. Whenever the Conversion Price is adjusted as herein
provided, the Company shall promptly, but in no event later than five Business Days thereafter,
give a notice to the Holder setting forth the Conversion Price after such adjustment and setting
forth a brief statement of the facts requiring such adjustment, but which statement shall not
include any information which would be material non-public information for purposes of the 1934
Act. Failure to deliver such notice shall not affect the legality or validity of any such
adjustment.




          (11) Effectiveness of Certain Adjustments. In any case in which this Section 6(c) provides
that an adjustment shall become effective immediately after a Record Date for an event, the Company
may defer until the occurrence of such event (i) issuing to the Holder in connection with any
conversion of this Note after such Record Date and before the occurrence of such event the
additional shares of Common Stock issuable upon such conversion by reason of the adjustment
required by such event over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to the Holder any amount in cash in lieu of any fraction
pursuant to Section 6(b)(6).




          (12) Outstanding Shares. For purposes of this Section 6(c), the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of the Company but
shall include shares issuable in respect of scrip certificates issued in lieu of fractions of
shares of Common Stock. The Company will not pay any dividend or make any distribution on shares of
Common Stock held in the treasury of the Company other than dividends or distributions payable only
in shares of Common Stock.




          (d) Automatic Conversion in Certain Circumstances; Conversion Based on VWAP. (1) Any portion
of the principal amount of this Note that is due and remains outstanding on a particular
Installment Maturity Date or the Final Maturity Date, as the case may be, shall be converted into
Common Stock on such Installment Maturity Date or Final Maturity Date, as the case may be, without
further action on the part of the Holder or the Company so long as the following conditions
precedent are satisfied:





     (A) during the period of 20 consecutive Trading Days ending on and including the
Trading Day immediately prior to the applicable Installment Maturity Date or the Final
Maturity Date, as the case may be, (i) on each of



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at least 15 of the Trading Days in such period the VWAP of the Common Stock shall have been
at least equal to the Conversion Price in effect on such Trading Day and (ii) no suspension
of trading of the Common Stock shall be in effect,




     (B) on the applicable Installment Maturity Date or the Final Maturity Date, as the case
may be, no Event of Default and no event which, with notice or passage of time, or both,
would become an Event of Default has occurred and is continuing,




     (C) on the applicable Installment Maturity Date or the Final Maturity Date, as the case
may be, no Repurchase Event has occurred with respect to which the Holder has the right to
exercise repurchase rights pursuant to Section 5 or with respect to which the Holder has
exercised such repurchase rights and the Repurchase Price has not been paid to the Holder
and no event which, with notice or passage of time, or both, would become a Repurchase Event
has occurred and is continuing,




     (D) during the period of 20 consecutive Trading Days ending on and including the
Trading Day immediately prior to the applicable Installment Maturity Date or the Final
Maturity Date, as the case may be, and on the applicable Installment Maturity Date or the
Final Maturity Date, as the case may be, the Registration Statement shall be effective and
available for use by the Holder, the holders of the Other Note and the holders of the
Warrants and the Redemption Warrants and the Other Redemption Warrants, if any, at the time
outstanding for the resale of the shares of Common Stock issued and issuable upon conversion
of this Note and the Other Note and issued or issuable upon exercise of the Warrants and
upon exercise of the Redemption Warrants and the Other Redemption Warrants, if any, at the
time outstanding, as the case may be, and is reasonably expected to remain effective and
available for such use for at least 30 days after the applicable Installment Maturity date
or the Final Maturity Date, as the case may be, and the Company shall be in compliance in
all material respects with the Registration Rights Agreement, and




     (E) during the period of 20 consecutive Trading Days ending on and including the
Trading Day immediately prior to the applicable Installment Maturity Date or the Final
Maturity Date, as the case may be, and on the applicable Installment Maturity Date or the
Final Maturity Date, as the case may be, no Maximum Share Amount Deficiency exists, and




     (F) on the applicable Installment Maturity Date or the Final Maturity Date, as the case
may be, the Company shall have furnished to the Holder a Company Certificate, dated such
date, confirming the matters set



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forth in the immediately preceding clauses (A), (B), (C), (D) and (E) and stating that all
other requirements of the Transaction Documents for such conversion, other than Section
6(d)(3), have been satisfied.


Such conversion shall otherwise occur in accordance with the provisions of this Section 6 as if it
were made at the option of the Holder.




          (2) (A) The Company shall have the right, by giving the Company Conversion Notice to the
Holder and the holders of the Other Note, to effect conversion of the entire outstanding principal
amount of this Note and the Other Note into Common Stock without further action on the part of the
Holder or the Company, so long as the following conditions precedent are satisfied:





     (i) on the date the Company gives the Company Conversion Notice and at all times
thereafter to and including the applicable Company Conversion Date, no Event of Default and
no event which, with notice or passage of time, or both, would become an Event of Default
has occurred and is continuing,




     (ii) on the date the Company gives the Company Conversion Notice and at all times
thereafter to and including the applicable Company Conversion Date, no Repurchase Event has
occurred with respect to which the Holder has the right to exercise repurchase rights
pursuant to Section 5 or with respect to which the Holder has exercised such repurchase
rights and the Repurchase Price has not been paid to the Holder and no event which, with
notice or passage of time, or both, would become a Repurchase Event has occurred and is
continuing,




     (iii) n the date the Company gives the Company Conversion Notice and at all times
thereafter to and including the applicable Company Conversion Date, the Registration
Statement shall be effective and available for use by the Holder, the holders of the Other
Note and the holders of the Warrants and the Redemption Warrants and the Other Redemption
Warrants, if any, at the time outstanding for the resale of the shares of Common Stock
issued and issuable upon conversion of this Note and the Other Note and issued or issuable
upon exercise of the Warrants and upon exercise of the Redemption Warrants and the Other
Redemption Warrants, if any, at the time outstanding, as the case may be, and is reasonably
expected to remain effective and available for such use for at least 30 days after the
Company Conversion Date and the Company shall be in compliance in all material respects with
its obligations under the Registration Rights Agreement,




     (iv) on the date the Company gives the Company Conversion Notice and at all times
thereafter to and including the applicable Company



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Conversion Date, no Maximum Share Amount Deficiency exists; and




     (v) on at least 15 Trading Days in the period of 20 consecutive Trading Days ending on
and including a Trading Day that is not more than five Trading Days prior to the date the
Company gives the Company Conversion Notice, the VWAP of the Common Stock shall have been at
least $11.00 per share (subject to adjustment from time to time on terms consistent with the
relevant provisions of Section 6(c) and otherwise reasonably acceptable to the Majority
Holders for (x) stock splits, (y) stock dividends and (z) combinations in any such case that
occur after the Issuance Date).


In order to exercise its right of conversion under this Section 6(d)(2) the Company shall give the
Company Conversion Notice to the Holder not less than 20 Trading Days or more than 40 Trading Days
prior to the Company Conversion Date stating that: (1) the Company is exercising its right to
convert this Note and the Other Note in accordance with this Section 6(d)(2) and the comparable
provisions of the Other Note, (2) the principal amount of this Note to be converted (assuming no
further conversions of this Note by the Holder), (3) the VWAP of the Common Stock on, and date of,
each of the Trading Days entitling the Company to convert this Note, (4) the Company Conversion
Date and (5) that all of the conditions of this Section 6(d)(2) entitling the Company to convert
this Note have been met. Such conversion shall otherwise be made in accordance with this Section
at the Conversion Price in effect on the Company Conversion Date.




          (B) The Company shall not be entitled to give the Company Conversion Notice or to convert any
portion of this Note with respect to which the Holder has given a Conversion Notice on or prior to
the date the Company gives the Company Conversion Notice. Notwithstanding the giving of the
Company Conversion Notice, the Holder shall be entitled to convert this Note in accordance with the
terms of this Note by giving a Conversion Notice at any time on or prior to the later of (1) the
date which is one Trading Day prior to the Company Conversion Date and (2) if the Company fails to
issue and deliver to the Holder the shares of Common Stock issuable on the Company Conversion Date,
the date on which the Company so issues such shares.




          (C) In order that the Company shall not discriminate among the Holder and the holders of the
Other Note, the Company agrees that the Company will exercise its conversion rights under this
Section 6(d)(2) only if at the same time the Company exercises its conversion rights relating to
the Other Note. In order that the Company not discriminate among the Holders and the holders of
the Other Note, the Company agrees that it shall not exercises its conversion rights for any of the
Other Note pursuant to the provisions thereof similar to this Section 6(d)(2) unless the Company
simultaneously exercises its conversion rights pursuant to this Section 6(d)(2).




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          (3) (A) Notwithstanding any other provision of this Note or applicable law to the contrary, in
case (1) on any Installment Maturity Date or the Final Maturity Date or (2) the Company shall give
the Company Conversion Notice to the Holder, and on the date the Company gives the Company
Conversion Notice or at any time thereafter to and including the applicable Company Conversion
Date, in either such case in the preceding clause (1) or (2) the Holder shall be restricted by
reason of the Restricted Ownership Percentage in converting any portion of this Note that would
otherwise be required to be converted under this Section 6(d) (the “Inconvertible Portion”), then
the date for conversion under Section 6(d)(1) or the Company Conversion Date for the Inconvertible
Portion, as the case may be, and which the Holder may not convert on such date, or at any such time
during such period from the date the Company gives such Company Conversion Notice to the Company
Conversion Date, as the case may be, shall be extended to be the Extended Company Conversion Date.
On the applicable Extended Company Conversion Date, the Company shall issue the shares of Common
Stock issuable upon conversion of any portion of this Note that is converted on such Extended
Company Conversion Date. Any portion of this Note for which there is an Extended Company
Conversion Date shall remain convertible by the Holder in accordance with this Section 6 at any
time to and including the close of business on the Business Day prior to the applicable Extended
Company Conversion Date; provided, however, that during the period from the Installment Maturity
Date, the Final Maturity Date or the Company Conversion Date, as the case may be, to the applicable
Extended Company Conversion Date any portion of this Note for which there is an Extended Company
Conversion Date shall no longer bear interest and no further adjustment shall be made pursuant to
Section 6(c)(7) to the Conversion Price or the number of shares of Common Stock issuable upon
conversion of such portion of the Note.




          (B) Notwithstanding anything to the contrary contained in Section 6(h), solely for the
purposes of calculating the Restricted Ownership Percentage for purposes of this Section 6(d), the
shares of Common Stock issuable upon exercise of the Warrants held by the Holder shall not be
deemed to be Excluded Shares and shall be taken into account in calculating the Restricted
Ownership Percentage to determine the amount of the Inconvertible Portion.




          (e) Effect of Reclassification, Consolidation, Merger or Sale. (1) If any of the following
events occur, namely:





     (i) any reclassification or change of the 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),



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     (ii) any consolidation, merger or combination of the Company with another corporation
as a result of which holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in exchange for such Common
Stock, or




     (iii) any sale or conveyance of the properties and assets of the Company as, or
substantially as, an entirety to any other corporation as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, then


in any such case in the preceding clause (i), (ii) or (iii) the Company or the successor or
purchasing Person, as the case may be, shall execute with the Holder a written agreement providing
that:





     (x) this Note shall be convertible into the kind and amount of shares of stock and
other securities or property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance by the
holder of the number of shares of Common Stock issuable upon conversion of this Note in full
(assuming, for such purposes, a sufficient number of authorized shares of Common Stock
available to convert this Note) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming such holder of Common Stock
did not exercise such holder’s rights of election, if any, as to the kind or amount of
securities, cash or other property receivable upon such consolidation, merger, statutory
exchange, sale or conveyance (provided that, if the kind or amount of securities, cash or
other property receivable upon such consolidation, merger, statutory exchange, sale or
conveyance is not the same for each share of Common Stock in respect of which such rights of
election shall not have been exercised (“non-electing share”), then for the purposes of this
Section 6(d) the kind and amount of securities, cash or other property receivable upon such
consolidation, merger, statutory exchange, sale or conveyance for each non-electing share
shall be deemed to be the kind and amount so receivable per share by a plurality of the
non-electing shares); provided, however, that in any such case in which a Repurchase Event
arises by reason of a Fundamental Change in which the holders of Common Stock are to receive
consideration that consists of a combination of cash and shares of common stock of the
acquiror in such transaction that are publicly traded, the Holder shall have the right to
require that the amount of cash that would otherwise be received by conversion of this Note
in full after such transaction instead be allocated to the principal amount of this Note as
to which the Holder exercises repurchase rights under Section 5 by reason of such
Fundamental Changes and that the portion of this Note not so repurchased shall be
convertible in
the aggregate,



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immediately after such transaction, solely into the number of shares of such
acquiror’s stock into which this Note would have been convertible in full had the Holder not
exercised such repurchase rights and such cash not have been allocated thereto, and the
Conversion Price shall be adjusted accordingly (subject to further adjustments as required
hereby).




     (y) in the case of any such successor or purchasing Person, upon such consolidation,
merger, combination, sale or conveyance such successor or purchasing Person shall be jointly
and severally liable with the Company for the performance of all of the Company’s
obligations under this Note, the Purchase Agreement and the Registration Rights Agreement,
and




     (z) if registration or qualification is required under the 1933 Act or applicable state
law for the public resale by the Holder of such shares of stock and other securities so
issuable upon conversion of this Note, such registration or qualification shall be completed
prior to such reclassification, change, consolidation, merger, combination or sale.


Such written agreement shall provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Section 6. If, in the case of any such
reclassification, change, consolidation, merger, combination, sale or conveyance, the stock or
other securities and assets receivable thereupon by a holder of shares of Common Stock includes
shares of stock or other securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such reclassification, change, consolidation,
merger, combination, sale or conveyance, then such written agreement shall also be executed by such
other corporation and shall contain such additional provisions to protect the interests of the
Holder as the Board of Directors shall reasonably consider necessary by reason of the foregoing,
including, to the extent practicable, the provisions providing for the repurchase rights set forth
in Section 5 herein.




          (2) The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and conveyances.




          (3) If this Section 6(e) applies to any event or occurrence, Section 6(c) shall not apply.




          (f) Reservation of Shares; Shares to Be Fully Paid; Listing of Common Stock.




          (1) The Company shall reserve and keep available, free from preemptive rights, out of its
authorized but unissued shares of Common Stock or shares of Common Stock held in treasury, solely
for issuance upon conversion of
this





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Note and the Other Note, and in addition to the shares of Common Stock required to be reserved
by the terms of the Warrants, sufficient shares to provide for the conversion of this Note and the
Other Note from time to time as this Note and the Other Note are converted.




          (2) Before taking any action which would cause an adjustment reducing the Conversion Price
below the then par value, if any, of the shares of Common Stock issuable upon conversion of this
Note, the Company will take all corporate action which may, in the opinion of its counsel, be
necessary in order that the Company may validly and legally issue shares of such Common Stock at
such adjusted Conversion Price.




          (3) The Company covenants that all shares of Common Stock issued upon conversion of this Note
will be fully paid and non-assessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.




          (4) The Company covenants that if any shares of Common Stock to be provided for the purpose of
conversion of this Note hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be validly issued upon conversion,
the Company will in good faith and as expeditiously as possible endeavor to secure such
registration or approval, as the case may be.




          (5) The Company covenants that, so long as the Common Stock shall be listed on the Nasdaq, the
NYSE, the AMEX or any other national securities exchange, the Company shall obtain and, so long as
the Common Stock shall be so listed on such market or exchange, maintain approval for listing
thereon of all Common Stock issuable upon conversion of or in payment of interest on this Note.




          (g) Notice to Holder Prior to Certain Actions. In case on or after the Issuance Date:





     (1) the Company shall declare a dividend (or any other distribution) on its Common
Stock (other than in cash out of retained earnings); or




     (2) the Company shall authorize the granting to the holders of its Common Stock of
rights or warrants to subscribe for or purchase any share of any class or any other rights
or warrants; or




     (3) the Board of Directors shall authorize any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its outstanding Common Stock, or a
change in par value, or from par value to no par value, or from no par value to par value),
or any consolidation or merger or other business combination transaction to which the
Company is a



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party and for which approval of any stockholders of the Company is required, or the sale or
transfer of all or substantially all of the assets of the Company; or




     (4) there shall be pending the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;


the Company shall give the Holder, as promptly as possible but in any event at least ten Trading
Days prior to the applicable date hereinafter specified, a notice stating (x) the date on which a
record is to be taken for the purpose of such dividend, distribution or rights or warrants, or, if
a record is not to be taken, the date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution or rights are to be determined, or (y) the date on which
such reclassification, consolidation, merger, other business combination transaction, sale,
transfer, dissolution, liquidation or winding-up is expected to become effective or occur, and the
date as of which it is expected that holders of Common Stock of record who shall be entitled to
exchange their Common Stock for securities or other property deliverable upon such
reclassification, consolidation, merger, other business combination transaction, sale, transfer,
dissolution, liquidation or winding-up shall be determined. Such notice shall not include any
information which would be material non-public information for purposes of the 1934 Act. Failure to
give such notice, or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer, dissolution,
liquidation or winding-up. In the case of any such action of which the Company gives such notice to
the Holder or is required to give such notice to the Holder, the Holder shall be entitled to give a
Conversion Notice which is contingent on the completion of such action.




          (h) 4.9% Limitation. (1) Notwithstanding anything to the contrary contained herein, the
number of shares of Common Stock that may be acquired by the Holder upon conversion of this Note at
any time shall not exceed a number that, when added to the total number of shares of Common Stock
deemed beneficially owned by the Holder (other than by virtue of the ownership of Excluded Shares),
together with all shares of Common Stock deemed beneficially owned at such time (other than by
virtue of the ownership of the Excluded Shares) by all Aggregation Parties, in either such case for
purposes of Section 13(d) of the 1934 Act and Regulation 13D-G thereunder (including, without
limitation, as the same is made applicable to Section 16 of the 1934 Act and the rules promulgated
thereunder), would result in beneficial ownership by the Holder or such group of more than 4.9% of
the shares of Common Stock for purposes of Section 13(d) or Section 16 of the 1934 Act and the
rules promulgated thereunder (as the same may be modified by the Holder as provided herein, the
“Restricted Ownership Percentage”). The Holder shall have the right at any time and from time to
time to reduce its Restricted Ownership Percentage immediately upon notice to the Company in the
event and




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only to the extent that Section 13(d) or 16 of the 1934 Act or the rules promulgated thereunder (or
any successor statute or rules) is changed to reduce the beneficial ownership percentage threshold
thereunder to a percentage less than 5% or 10%, as the case may be. If at any time the limits in
this Section 6(h) make this Note inconvertible in whole or in part, the Company shall not by reason
thereof be relieved of its obligation to issue shares of Common Stock at any time or from time to
time thereafter but prior to the Final Maturity Date upon conversion of this Note as and when
shares of Common Stock may be issued in compliance with such restrictions. For purposes of
applying the limitation in this Section 6(h), shares of Common Stock issuable or issued in a Share
Redemption that are or are deemed to be beneficially owned by the Holder for purposes of Section
13(d) or Section 16 of the 1934 Act may give rise to limitations under this Section 6(h) on the
number of shares of Common Stock that the Holder may acquire upon conversion of this Note;
provided, however, that notwithstanding any such limitation, prior to the applicable Share
Redemption Date, the Holder shall be entitled to convert this Note to the extent such conversion
would, in accordance with the terms of this Note, reduce the principal amount of this Note to be
redeemed in such Share Redemption.




          (2) For purposes of this Section 6(h), in determining the number of outstanding shares of
Common Stock at any time the Holder may rely on the number of outstanding shares of Common Stock as
reflected in (1) the Company’s then most recent Form 10-Q, Form 10-K or other public filing with
the SEC, as the case may be, (2) a public announcement by the Company that is later than any such
filing referred to in the preceding clause (1) or (3) any other notice by the Company or the
Transfer Agent setting forth the number shares of Common Stock outstanding and knowledge the Holder
may have about the number of shares of Common Stock issued upon conversion or exercise of Common
Stock Equivalents by any Person, including the Holder, which are not reflected in the preceding
clauses (1) through (3). Upon the written request of the Holder, the Company shall within three
Business Days confirm 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 Common Stock Equivalents, including this Note,
the Other Note and the Warrants, by the Holder or its Affiliates or the holders thereof, in each
such case subsequent to the date as of which such number of outstanding shares of Common Stock was
reported.




          (3) The number of shares of Common Stock issuable upon conversion of this Note may be limited
as provided in Section 6.16 of the Purchase Agreement. In connection therewith, the Holder may be
entitled to require the Company to redeem or repurchase this Note on the terms provided in Section
6.16 of the Purchase Agreement.




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          Section 7. Miscellaneous.




          (a) Failure or Indulgency Not Waiver. No failure or delay on the part of the Holder or the
Company 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 privileges. All rights and
remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies
otherwise available.




          (b) Notices. Except as otherwise specifically provided herein, any notice herein required or
permitted to be given shall be in writing and may be personally served, sent by telephone line
facsimile transmission or delivered by courier or sent by United States mail and shall be deemed to
have been given upon receipt if personally served, sent by telephone line facsimile transmission or
sent by courier or three days after being deposited in the facilities of the United States Postal
Service, certified, with postage pre-paid and properly addressed, if sent by mail. For the
purposes hereof, the address and facsimile line transmission number of the Holder shall be as
furnished by the Holder for such purpose and shown on the records of the Company; and the address
of the Company shall be Zix Corporation, 2711 N. Haskell Avenue, Suite 2300, LB 36, Dallas, Texas
75204, Attention: Chief Financial Officer (telephone line facsimile transmission number (214) 515-
7385). The Holder or the Company may change its address for notice by service of written notice to
the other as herein provided.




          (c) Amendment, Waiver, Etc. In order that the Company not be entitled to discriminate among
the Holder and the holders of the Other Note, neither this Note or any Other Note nor any terms
hereof or thereof may be changed, waived, discharged or terminated unless such change, waiver,
discharge or termination is in writing signed by the Company and the Majority Holders, provided
that no such change, waiver, discharge or termination shall, without the consent of the Holder and
the holders of the Other Note affected thereby (i) extend any scheduled Installment Maturity Date
or the Final Maturity Date of this Note or any Other Note, or reduce the rate or extend the time of
payment of interest (other than as a result of waiving the applicability of any post-default
increase in interest rates) hereon or reduce the principal amount or the Repurchase Price hereof or
reduce or change the form, amount or relative amounts of the components of the Optional Redemption
Consideration, (ii) increase the Conversion Price or change the method by which the Conversion
Price is adjusted so as to affect the Holder adversely, (iii) release any Collateral or reduce the
amount of Collateral required to be deposited or maintained by the Company pursuant to the Security
Agreement, except as expressly provided in the Security Agreement, (iv) amend, modify or waive any
provision of this Section 7(c), (v) reduce any percentage specified in, or otherwise modify, the
definition of Majority Holders or (vi) except as provided in this Note, change the method of
calculating the Interest Share Price or the Optional




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Redemption Consideration in a manner adverse to the Holder. Notwithstanding anything to the
contrary contained herein, no amendment or waiver shall increase or eliminate the Restricted
Ownership Percentage or the percentage set forth in Section 2(c)(9)(A), whether permanently or
temporarily, unless, in addition to complying with the other requirements of this Note, such
amendment or waiver shall have been approved in accordance with the Texas Business Corporation Act
and the Company’s by-laws by holders of the outstanding shares of Common Stock entitled to vote at
a meeting or by written consent in lieu of such meeting.




          (d) Assignability. This Note shall be binding upon the Company and its successors, and shall
inure to the benefit of the Holder and the Company and their successors and permitted assigns. The
Company may not assign its rights or obligations under this Note.




          (e) Certain Expenses. The Company shall pay on demand all reasonable out-of-pocket expenses
incurred by the Holder, including reasonable attorneys’ fees and expenses, as a consequence of, or
in connection with (x) any amendment or waiver of this Note or any other Transaction Document, (y)
any default or breach of any of the Company’s obligations set forth in the Transaction Documents
and (z) the enforcement or restructuring of any right of, including the collection of any payments
due, the Holder under the Transaction Documents, including any action or proceeding relating to
such enforcement or any order, injunction or other process seeking to restrain the Company from
paying any amount due the Holder.




          (f) Governing Law. (1) This Note shall be governed by the internal laws of the State of New
York, without regard to the principles of conflict of laws.




          (2) The Company irrevocably submits to the exclusive jurisdiction of any State or federal
court sitting in the State of New York, County of New York (such consent shall not be deemed a
general consent to jurisdiction and service for any third party) over any suit, action, or
proceeding arising out of or relating to this Note. The Company irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the laying of the
venue of any such suit, action, or proceeding brought in such a court and any claim that suit,
action, or proceeding has been brought in an inconvenient forum.




          (3) The Company agrees that the service of process upon it mailed by certified or registered
mail (and service so made shall be deemed complete five Business Days after the same has been
posted as aforesaid) or by personal service shall be deemed in every respect effective service of
process upon it in any such suit or proceeding. Nothing herein shall affect Holder’s right to
serve process in any other manner permitted by law. The Company agrees that a final non-appealable




-73-









 







judgment in any such suit or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on such judgment or in any other lawful manner.




          (4) The Company knowingly and voluntarily waives any and all rights it may have to a trial by
jury with respect to any litigation based on, or arising out of, under, or in connection with, this
Note.




          (g) Savings Clause. In case any provision of this Note is held by a court of competent
jurisdiction to be excessive in scope or otherwise invalid or unenforceable, such provision shall
be adjusted rather than voided, if possible, so that it is enforceable to the maximum extent
possible, and the validity and enforceability of the remaining provisions of this Note will not in
any way be affected or impaired thereby. In no event shall the amount of interest paid hereunder
exceed the maximum rate of interest on the unpaid principal balance hereof allowable by applicable
law. If any sum is collected in excess of the applicable maximum rate, the excess collected shall
be applied to reduce the principal debt. If the interest actually collected hereunder is still in
excess of the applicable maximum rate, the interest rate shall be reduced so as not to exceed the
maximum allowable under law.




          (h) Transfer of Note. This Note has not been and is not being registered under the provisions
of the 1933 Act or any state securities laws and this Note may not be transferred prior to the date
that is two years after the Issuance Date unless (1) such transferee is (x) an “accredited
investor” (as defined in Regulation D under the 1933 Act) or (y) a QIB in a transfer that meets the
requirements of Rule 144A and (2) the Holder shall have delivered to the Company an opinion of
counsel, reasonably satisfactory in form, scope and substance to the Company, to the effect that
this Note may be sold or transferred without registration under the 1933 Act. Before any such
transfer prior to the date that is two years after the Issuance Date, such transferee shall have
represented in writing to the Company that such transferee has requested and received from the
Company all information relating to the business, properties, operations, condition (financial or
other), results of operations or financial prospects of the Company and the Subsidiaries deemed
relevant by such transferee; that such transferee has been afforded the opportunity to ask
questions of the Company concerning the foregoing and has had the opportunity to obtain and review
the reports and other information concerning the Company which at the time of such transfer have
been filed by the Company with the SEC pursuant to the 1934 Act. In addition, this Note may not be
transferred (except by operation of law) without the prior written consent of the Company, which
consent shall not be unreasonably withheld or delayed; provided, however, that (a) such consent of
the Company shall not be required for (1) any transfer after the occurrence of an Event of Default
if any Event of Default shall be continuing or a Repurchase Event shall have occurred and (2) any
transfer to an Affiliate of the Holder or any Person who is an investment fund which has the same




-74-









 







investment adviser as the Holder or whose investment adviser is an Affiliate of the Holder’s
investment adviser and (b) in the case of a proposed transfer of this Note to a Person (other than
a Person described in the preceding clause (a) of this proviso) the Company reasonably determines
is one of its competitors, is a Person with whom the Company is or has been opposed in a dispute in
litigation, or is a Person with whom the Company is engaged in a significant business dispute, the
Company may withhold its consent in its sole discretion and shall so notify the Holder promptly.




          (i) Enforceable Obligation. The Company represents and warrants that at the time of the
original issuance and delivery to the Holder of this Note it received the full purchase price
payable pursuant to the Purchase Agreement in an amount at least equal to the original principal
amount of this Note, and that this Note is an enforceable obligation of the Company which is not
subject to any offset, reduction, counterclaim or disallowance of any sort.




          (j) Note Register; Replacement of Notes. The Company shall maintain a register showing the
names, addresses and telephone line facsimile numbers of the Holder and the registered holders of
the Other Note. The Company shall also maintain a facility for the registration of transfers of
this Note and the Other Note and at which this Note and the Other Note may be surrendered for split
up into instruments of smaller denominations or for combination into instruments of larger
denominations. Upon receipt by the Company of evidence reasonably satisfactory to it of the
ownership of and the loss, theft, destruction or mutilation of this Note and (a) in the case of
loss, theft or destruction, of indemnity from the Holder reasonably satisfactory in form to the
Company (and without the requirement to post any bond or other security) or (b) in the case of
mutilation, upon surrender and cancellation of this Note, the Company will execute and deliver to
the Holder a new Note of like tenor without charge to the Holder.




          (k) Payment of Note on Redemption or Repurchase; Deposit of Optional Redemption Consideration
or Repurchase Price, Etc. (a) If this Note or any portion of this Note is to be redeemed as
provided in Section 2(b) or 2(c) or repurchased as provided in Section 5 and any notice required in
connection therewith shall have been given as provided therein and the Company shall have otherwise
complied with the requirements of this Note with respect thereto, then this Note or the portion of
this Note to be so redeemed or repurchased and with respect to which any such notice has been given
shall become due and payable on the date stated in such notice for the applicable Optional
Redemption Consideration, by issuance of the applicable number of shares of Common Stock for the
particular Share Redemption or at the Repurchase Price. On and after the applicable Optional
Redemption Date, Share Redemption Date or repurchase date so stated in such notice, provided that
the Company shall have deposited with an Eligible Bank on or prior to such Optional Redemption Date
or repurchase date, an




-75-









 







amount in cash and a Redemption Warrant for a number of shares of Common Stock sufficient to pay
the applicable Optional Redemption Consideration or an amount in cash sufficient to pay the
applicable Repurchase Price or issued and delivered to the Holder the applicable number of shares
of Common Stock for the particular Share Redemption when due, interest on this Note or the portion
of this Note to be so redeemed or repurchased shall cease to accrue, and this Note or such portion
hereof shall be deemed not to be outstanding and shall not be entitled to any benefit with respect
to principal of or interest on the portion to be so redeemed or repurchased except to receive
payment of the applicable Optional Redemption Consideration or Repurchase Price or issuance and
delivery of such shares of Common Stock, as the case may be. On presentation and surrender of this
Note or such portion hereof, this Note or the specified portion hereof shall be paid and redeemed
or repurchased for the applicable Optional Redemption Consideration or at the Repurchase Price. No
such surrender of this Note shall be required in connection with a Share Redemption. If a portion
of this Note is to be redeemed or repurchased, upon surrender of this Note to the Company in
accordance with the terms hereof, the Company shall execute and deliver to the Holder without
service charge, a new Note or Notes, having the same date hereof and containing identical terms and
conditions, in such denomination or denominations as requested by the Holder in aggregate principal
amount equal to, and in exchange for, the unredeemed or unrepurchased portion of the principal
amount of this Note so surrendered.




          (l) Conversion and Redemption Schedule. Promptly after each conversion of this Note pursuant
to Section 6 or Share Redemption, the Holder shall record on a schedule, in substantially the form
attached as Exhibit H, the amount by which the outstanding principal of this Note has been reduced
by reason of such conversion or redemption. Such schedule shall be conclusive and binding on the
Company and the Holder, in the absence of manifest error. The Holder shall from time to time, upon
request made by notice from the Company, furnish a copy of such schedule to the Company. The
Holder shall also furnish a copy of such schedule upon request to any proposed transferee of this
Note.




          (m) Construction. The language used in this Note will be deemed to be the language chosen by
the Company and the original Holder of this Note (or its predecessor instrument) to express their
mutual intent, and no rules of strict construction will be applied against the Company or the
Holder.




[Signature Page Follows]




-76-









 








          IN WITNESS WHEREOF, the Company has caused this Note to be duly executed by one of its
officers thereunto duly authorized on the day and in the year first above written.




	 	 	 	 	 
	 	 	ZIX CORPORATION
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 

	 	 	 	Name:
	 

	 	 	 	Title:






-77-









 






ASSIGNMENT




          For value received                      hereby sell(s), assign(s) and
transfer(s) unto                      (Please insert social security
or other Taxpayer Identification Number of assignee:                     )
the within Note, and hereby irrevocably constitutes and appoints                     
attorney to transfer the said Note on the books of Zix Corporation, a Texas corporation (the
“Company”), with full power of substitution in the premises.




          In connection with any transfer of the Note within the period prior to the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the 1933 Act (or any successor
provision) (other than any transfer pursuant to a registration statement that has been declared
effective under the 1933 Act), the undersigned confirms that such Note is being transferred:





	 	o	 	To the Company or a subsidiary thereof; or






	 	o	 	To an “accredited investor” pursuant to and in compliance with the 1933 Act;






	 	o	 	To a QIB pursuant to and in compliance with Rule144A; or






	 	o	 	Pursuant to and in compliance with Rule 144 under the 1933 Act;




and unless the box below is checked, the undersigned confirms that, to the knowledge of the
undersigned, such Note is not being transferred to an “affiliate” of the Company as defined in Rule
144 under the 1933 Act (an “Affiliate”).





	 	o	 	The transferee is an Affiliate of the Company.





          Capitalized terms used in this Assignment and not defined in this Assignment shall have the
respective meanings provided in the Note.




	 	 	 	 	 	 	 	 	 
	Dated:

	 	 	 	 	 	NAME:	 	 
	 

	 	 
	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 	 	 	 	 	 	Signature(s)







 









 






Exhibit A




FORM OF CONVERSION NOTICE




(To be
executed by the Holder in order
to convert Amended and Restated Convertible Note Due 2005-2008)



	 	 	 	 	 
	 

	 	Re:
	 	Amended and Restated Convertible Note Due 2005-2008 issued by ZIX CORPORATION
identified below





The undersigned hereby elects to convert the outstanding principal amount indicated below of the
Amended and Restated Convertible Note due 2005-2008 into shares of Common Stock, of ZIX
CORPORATION, a Texas corporation (the “Company”), according to the terms hereof and of the Note, as
of the date written below. If shares are to be issued in the name of a person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect thereto and is
delivering herewith such certificates and opinions as reasonably requested by the Company in
accordance therewith. No fee will be charged to the Holder for any conversion, except for such
transfer taxes, if any. The undersigned represents as of the date hereof that, after giving effect
to the conversion of the Note pursuant to this Conversion Notice, the undersigned will not exceed
the “Restricted Ownership Percentage” contained in Section 6(h) of the Note.




	 	 	 
	Conversion information:
	 	 
	 

	 	 
	 

	 	Note Number
	 
	 	 
	 

	 	 
	 

	 	Conversion Date
	 
	 	 
	 

	 	 
	 

	 	Principal Amount of Note Being Converted
	 
	 	 
	 

	 	Portions of installments of principal to which
this conversion is allocated:
	 
	 	 
	 

	 	Due November 2, 2005: $                      
	 

	 	Due November 2, 2006: $                      
	 

	 	Due November 2, 2007: $                     *
	 

	 	Due November 2, 2008: $                     *








 




			
	[*	 	Substitute dates of due dates change pursuant to
Section 2(d)(2) of the Note]




A-1









 






	 	 	 	 	 
	 	 	 
	 	 	Number of Shares of Common Stock to Be Issued
	 
	 	 	 	 
	 	 	 
	 	 	Applicable Conversion Price
	 
	 	 	 	 
	 

	 	By:	 	 
	 

	 	 	 	 
	 	 	Signature

	 
	 	 	 	 
	 	 	 
	 	 	Name

	 
	 	 	 	 
	 	 	 
	 	 	Address







A-2









 






Exhibit B




ZIX CORPORATION




OPTIONAL REDEMPTION NOTICE

(Section 2(b) of Amended and Restated

Convertible Note due 2005-2008)




	 	 	 	 	 
	TO:
	 	 	 	 
	 	 	 	 	 
	 

	 	(Name of Holder)
	 	 






     1. Pursuant to the terms of the Amended and Restated Convertible Note due 2005-2008 (the
“Note”), Zix Corporation, a Texas corporation (the “Company”), hereby notifies the above-named
Holder that the Company is exercising its right to redeem the Note in accordance with Section 2(b)
of the Note as set forth below:



          (i) The cash portion of Optional Redemption Consideration (based on the principal amount of
the Note outstanding on the date this Notice is given) is $                    .




          (ii) The Redemption Warrant issuable upon such redemption (based on the principal amount of
the Note outstanding on the date this Notice is given) initially will entitle the holder to
purchase                      shares of Common Stock at a price of $                     per share.




          (iii) The Optional Redemption Date is                     .




     2. All of the conditions of Section 2(b) of the Note for this redemption have been satisfied.



     3. Capitalized terms used herein and not otherwise defined herein have the respective meanings
provided in the Note.



	 	 	 	 	 	 	 	 	 
	Date	 	 	 	 	 	ZIX CORPORATION
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 





B-1









 






Exhibit C




ZIX CORPORATION




COMPANY NOTICE

(Section 5(b)(1) of Amended and Restated

Convertible Note due 2005-2008)




	 	 	 	 
	TO:
	 	 	 
	 	 	 	 
	 	 	(Name of Holder)	 






          (1) A Repurchase Event described in the Amended and Restated Convertible Note due 2005-2008
(the “Note”) of Zix Corporation, a Texas corporation (the “Company”), occurred on                     , 200     . As a result of such Repurchase Event, the Holder is entitled to
exercise its repurchase rights pursuant to Section 5(b)(1) of the Note.




          (2) The Holder’s repurchase right must be exercised on or before                     ,
200     .




          (3) At or before the date set forth in the preceding paragraph (2), the Holder must:





     (a) deliver to the Company a Holder Notice, in the form attached as Exhibit D to the
Note; and




     (b) the Note, duly endorsed for transfer to the Company of the portion of the principal
amount to be repurchased.



          (4) Capitalized terms used herein and not otherwise defined herein have the respective
meanings provided in the Note.




	 	 	 	 	 	 	 	 	 
	Date	 	 	 	 	 	ZIX CORPORATION
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 





C-1









 






Exhibit D




ZIX CORPORATION




HOLDER NOTICE

(Section 5(b)(2) of Amended and Restated

Convertible Note due 2005-2008)



TO: ZIX CORPORATION




          (1) Pursuant to the terms of the Amended and Restated Convertible Note due 2005-2008 (the
“Note”), the undersigned Holder hereby elects to exercise its right to require repurchase by the
Company pursuant to Sections 5(b)(1) and 5(b)(2) of $                     of the Note,
equal to the sum of $                     principal amount of the Note, $                     of accrued and unpaid
interest on such principal amount and $                     
of interest at the Default Rate on such interest, at the Repurchase Price provided in the Note.




          (2) Capitalized terms used herein and not otherwise defined herein have the respective
meanings provided in the Note.




	 	 	 	 	 	 	 	 	 
	Date:	 	 	 	 	 	NAME OF HOLDER:
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Signature of Registered Holder
(Must be signed exactly as name
appears in the Note.)






D-1









 






Exhibit F




FORM OF COMPANY CONVERSION NOTICE

(Section 6(d)(2))




(To be given by the Company in order

to convert Amended and Restated Convertible Note

Due 2005-2008 pursuant to Section 6(d)(2))



	 	 	 	 	 
	 

	 	Re:
	 	Convertible Note Due 2005-2008 issued by ZIX CORPORATION identified below






          ZIX CORPORATION, a Texas corporation (the “Company”), hereby notifies the Holder of the
Amended and Restated Convertible Note due 2005-2008 that the Company hereby elects to convert the
outstanding principal amount of the Note into shares of Common Stock, according to the terms the
Note as follows:




          1. The Company is exercising its right to convert the Note and the Other Note in accordance
with Section 6(d)(2) of the Note and the comparable provisions of the Other Note.




          2. The principal amount of the Note to be converted (assuming no further conversions of the
Note by the Holder) is $___.




          3. The VWAP of the Common Stock on, and date of, each of the Trading Days entitling the
Company to convert the Note are as follows:




     Date                VWAP



F-1









 





     4. The Company Conversion Date is                     .



     5. All of the conditions of Section 6(d)(2) of the Note entitling the Company to convert the
Note have been met.



     6. Capitalized terms used herein and not otherwise defined herein have the respective meanings
provided in the Note.



	 	 	 	 	 	 	 	 	 
	Date	 	 	 	 	 	ZIX CORPORATION
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 





F-2









 






Exhibit G




ZIX CORPORATION




SHARE REDEMPTION NOTICE

(Section 2(c) of Amended and Restated

Convertible Note due 2005-2008)




	 	 	 	 
	TO:
	 	 	 
	 	 	 	 
	 	 	(Name of Holder)	 






     1. Pursuant to the terms of the Amended and Restated Convertible Note due 2005-2008 (the
“Note”), Zix Corporation, a Texas corporation (the “Company”), hereby notifies the above-named
Holder that the Company is exercising its right to redeem the Note in accordance with Section 2(c)
of the Note as set forth below.



     2. The principal amount of the Note to be redeemed is $                     (assuming no conversion of
the Note that reduces such amount and that the Share Redemption Share Amount for this Share
Redemption will be computed based on the entire such principal amount).



     3. The amount of the Share Redemption Price payable on the Share Redemption Date is
$                     (assuming no conversion of this Note from the date the Company gives such Share
Redemption Notice to the applicable Share Redemption Date and that the Share Redemption Share
Amount for this Share Redemption will be computed based on the entire principal amount included
such Share Redemption Price).



     4. The principal installment to which this Share Redemption shall be applied is the
installment scheduled to be due November 2, [2005][2008].



     5. The applicable Share Redemption Date is                     .



     6. All of the conditions of Section 2(c) of the Note entitling the Company to call the Note
for this redemption have been met.



     7. Capitalized terms used herein and not otherwise defined herein have the respective meanings
provided in the Note.



G-1









 





	 	 	 	 	 	 	 	 	 
	Date	 	 	 	 	 	ZIX CORPORATION
	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	By:	 	 
	 

	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	Title:	 	 
	 

	 	 	 	 	 	 	 	 





F-2









 






EXHIBIT H




ZIX CORPORATION




CONVERSION AND REDEMPTION SCHEDULE




This Conversion and Redemption Schedule shows reductions in the outstanding principal amount of the
Amended and Restated Convertible Note due 2005-2008 (the “Note”) of Zix Corporation, a Texas
corporation, upon conversions pursuant to Section 6 of the Note or Share Redemptions pursuant to
Section 2(c) of the Note. Capitalized terms used in this Schedule and not otherwise defined herein
shall have the respective meanings provided in the Note.




	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 	 	 
	 	 	 	 	Date of Conversion	 	 	Principal	 	 	Principal	 	 	Installment	 	 	Principal Amount	 
	 	 	 	 	or Share	 	 	Amount of	 	 	Amount of	 	 	Maturity to Which	 	 	Remaining	 
	 	 	 	 	Redemption	 	 	Conversion	 	 	Share Redemption	 	 	Conversion or	 	 	Subsequent to	 
	 	 	 	 	(or for first entry,	 	 	(if applicable)	 	 	(if applicable)	 	 	Redemption	 	 	Conversion or	 
	 	 	 	 	the Issuance Date)	 	 	 	 	 	 	 	 	 	 	 	 	Applies	 	 	Share Redemption	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	(or original	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	Principal Amount)	 
	 	1.
	 	 	 	11/2/2004	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	$	10.000.000.00	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 	 
	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 	 
	 





[continue as necessary]





H-1