OR PROCEEDING, ANY CLAIM
THAT IT IS NOT PERSONALLY SUBJECT TO THE JURISDICTION OF ANY SUCH COURT, THAT
SUCH SUIT, ACTION OR PROCEEDING IS BROUGHT IN AN INCONVENIENT FORUM OR THAT THE
VENUE OF SUCH SUIT, ACTION OR PROCEEDING IS IMPROPER.
NOTHING CONTAINED HEREIN
SHALL BE DEEMED TO LIMIT IN ANY WAY ANY RIGHT TO SERVE PROCESS IN ANY MANNER
PERMITTED BY LAW.
IN THE EVENT THAT ANY PROVISION OF THIS NOTE IS INVALID OR
UNENFORCEABLE UNDER ANY APPLICABLE STATUTE OR RULE OF LAW, THEN SUCH PROVISION
SHALL BE DEEMED INOPERATIVE TO THE EXTENT THAT IT MAY CONFLICT THEREWITH AND
SHALL BE DEEMED MODIFIED TO CONFORM WITH SUCH STATUTE OR RULE OF LAW.
ANY SUCH
PROVISION WHICH MAY PROVE INVALID OR UNENFORCEABLE UNDER ANY LAW SHALL NOT
AFFECT THE VALIDITY OR ENFORCEABILITY OF ANY OTHER PROVISION OF THIS NOTE.
NOTHING CONTAINED HEREIN SHALL BE DEEMED OR OPERATE TO PRECLUDE THE HOLDER FROM
BRINGING SUIT OR TAKING OTHER LEGAL ACTION AGAINST THE COMPANY IN ANY OTHER
JURISDICTION TO COLLECT ON THE COMPANY'S OBLIGATIONS TO THE HOLDER, TO REALIZE
ON ANY COLLATERAL OR ANY OTHER SECURITY FOR SUCH OBLIGATIONS, OR TO ENFORCE A
JUDGMENT OR OTHER COURT RULING IN FAVOR OF THE HOLDER.
THE COMPANY HEREBY
IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE, AND AGREES NOT TO REQUEST, A JURY
TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR
ARISING OUT OF THIS NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.
(28)
CERTAIN DEFINITIONS.
FOR PURPOSES OF THIS NOTE, THE FOLLOWING
TERMS SHALL HAVE THE FOLLOWING MEANINGS:
(A)
"APPROVED STOCK PLAN" MEANS ANY EMPLOYEE BENEFIT PLAN WHICH HAS
BEEN APPROVED BY THE BOARD OF DIRECTORS OF THE COMPANY, PURSUANT TO WHICH THE
COMPANY'S SECURITIES MAY BE ISSUED TO ANY EMPLOYEE, OFFICER OR DIRECTOR FOR
SERVICES PROVIDED TO THE COMPANY.
(B)
"AVAILABLE INSTALLMENT AMOUNT" MEANS FOR ANY INSTALLMENT DATE, AN
AMOUNT EQUAL TO THE LESSER OF (A) THE PRODUCT OF (I) $4,000,000, MULTIPLIED BY
(II) HOLDER PRO RATA AMOUNT (PLUS THE SUM OF ANY ACCRUED AND UNPAID INTEREST ON
SUCH PRINCIPAL AMOUNT AND ANY ACCRUED AND UNPAID LATE CHARGES WITH RESPECT TO
SUCH PRINCIPAL AMOUNT AND INTEREST AS OF SUCH INSTALLMENT DATE) AND (B) THE
OUTSTANDING CONVERSION AMOUNT UNDER THIS NOTE AS OF SUCH INSTALLMENT DATE.
FOR
THE AVOIDANCE OF DOUBT, ANY ACCRUED AND UNPAID INTEREST WHICH MAY BE PAID
PURSUANT TO THIS DEFINITION SHALL BE DEDUCTED FROM THE TOTAL INTEREST TO BE PAID
ON ANY SUBSEQUENT INTEREST PAYMENT DATE.
(C)
"BLOOMBERG" MEANS BLOOMBERG FINANCIAL MARKETS.
(D)
"BUSINESS DAY" MEANS ANY DAY OTHER THAN SATURDAY, SUNDAY OR OTHER
DAY ON WHICH COMMERCIAL BANKS IN THE CITY OF NEW YORK ARE AUTHORIZED OR REQUIRED
BY LAW TO REMAIN CLOSED.
(E)
"CALENDAR QUARTER" MEANS EACH OF: THE PERIOD BEGINNING ON AND
INCLUDING JANUARY 1 AND ENDING ON AND INCLUDING MARCH 31; THE PERIOD BEGINNING
ON AND INCLUDING APRIL 1 AND ENDING ON AND INCLUDING JUNE 30; THE PERIOD
BEGINNING ON AND INCLUDING
23
JULY 1 AND ENDING ON AND INCLUDING SEPTEMBER 30;