ECONOMIC LOSS AND WITHOUT ANY BOND OR OTHER
SECURITY BEING REQUIRED.
(15)
PAYMENT OF COLLECTION, ENFORCEMENT AND OTHER
COSTS.
IF (I) THIS NOTE IS PLACED IN THE HANDS OF AN ATTORNEY FOR COLLECTION OR
ENFORCEMENT OR IS COLLECTED OR ENFORCED THROUGH ANY LEGAL PROCEEDING OR THE
HOLDER OTHERWISE TAKES ACTION TO COLLECT AMOUNTS DUE UNDER THIS NOTE OR TO
ENFORCE THE PROVISIONS OF THIS NOTE OR (II) THERE OCCURS ANY BANKRUPTCY,
REORGANIZATION, RECEIVERSHIP OF THE COMPANY OR OTHER PROCEEDINGS AFFECTING
COMPANY CREDITORS' RIGHTS AND INVOLVING A CLAIM UNDER THIS NOTE, THEN THE
COMPANY SHALL PAY THE DOCUMENTED COSTS INCURRED BY THE HOLDER FOR SUCH
COLLECTION, ENFORCEMENT OR ACTION OR IN CONNECTION WITH SUCH BANKRUPTCY,
REORGANIZATION, RECEIVERSHIP OR OTHER PROCEEDING, INCLUDING, BUT NOT LIMITED TO,
ATTORNEYS' FEES AND DISBURSEMENTS.
(16)
SECURITY AGREEMENT. THE PAYMENT OF PRINCIPAL,
INTEREST AND ALL OTHER LIABILITIES OF THE COMPANY HEREUNDER IS SECURED BY A
SECURITY INTEREST IN CERTAIN COLLATERAL OF THE COMPANY AS DESCRIBED IN THE
SECURITY AGREEMENT (AS DEFINED BELOW).
(17)
CONSTRUCTION; HEADINGS.
THIS NOTE SHALL BE
DEEMED TO BE JOINTLY DRAFTED BY THE COMPANY AND THE HOLDER AND SHALL NOT BE
CONSTRUED AGAINST ANY PERSON AS THE DRAFTER HEREOF.
THE HEADINGS OF THIS NOTE
ARE FOR CONVENIENCE OF REFERENCE AND SHALL NOT FORM PART OF, OR AFFECT THE
INTERPRETATION OF, THIS NOTE.
(18)
FAILURE OR INDULGENCE NOT WAIVER.
NO FAILURE OR
DELAY ON THE PART OF THE HOLDER IN THE EXERCISE OF ANY POWER, RIGHT OR PRIVILEGE
HEREUNDER SHALL OPERATE AS A WAIVER THEREOF, NOR SHALL ANY SINGLE OR PARTIAL
EXERCISE OF ANY SUCH POWER, RIGHT OR PRIVILEGE PRECLUDE OTHER OR FURTHER
EXERCISE THEREOF OR OF ANY OTHER RIGHT, POWER OR PRIVILEGE.
(19)
NOTICES; PAYMENTS.
(A)
NOTICES.
WHENEVER NOTICE IS REQUIRED TO BE
GIVEN UNDER THIS NOTE, UNLESS OTHERWISE PROVIDED HEREIN, SUCH NOTICE SHALL BE
GIVEN IN ACCORDANCE WITH SECTION 12.3 OF THE NOTE PURCHASE AGREEMENT.
THE
COMPANY SHALL PROVIDE THE HOLDER WITH PROMPT WRITTEN NOTICE OF ALL ACTIONS TAKEN
PURSUANT TO THIS NOTE, INCLUDING IN REASONABLE DETAIL A DESCRIPTION OF SUCH
ACTION AND THE REASON THEREFORE.
WITHOUT LIMITING THE GENERALITY OF THE
FOREGOING, THE COMPANY WILL GIVE WRITTEN NOTICE TO THE HOLDER (I) IMMEDIATELY
UPON ANY ADJUSTMENT OF THE CONVERSION PRICE, SETTING FORTH IN REASONABLE DETAIL,
AND CERTIFYING, THE CALCULATION OF SUCH ADJUSTMENT AND (II) AT LEAST TWENTY (20)
DAYS PRIOR TO THE DATE ON WHICH THE COMPANY CLOSES ITS BOOKS OR TAKES A RECORD
(A) WITH RESPECT TO ANY DIVIDEND OR DISTRIBUTION UPON THE SHARES OF COMMON
STOCK, (B) WITH RESPECT TO ANY PRO RATA SUBSCRIPTION OFFER TO HOLDERS OF SHARES
OF COMMON STOCK OR (C) FOR DETERMINING RIGHTS TO VOTE WITH RESPECT TO ANY
TRANSACTION DESCRIBED IN SECTION 5, DISSOLUTION OR LIQUIDATION, PROVIDED IN EACH
CASE THAT SUCH INFORMATION SHALL BE MADE KNOWN TO THE PUBLIC PRIOR TO OR IN
CONJUNCTION WITH SUCH NOTICE BEING PROVIDED TO THE HOLDER.
(B)
PAYMENTS.
WHENEVER ANY PAYMENT OF CASH IS
TO BE MADE BY THE COMPANY TO THE HOLDER PURSUANT TO THIS NOTE, SUCH