MEANING SET FORTH IN
THE SECURITIES PURCHASE AGREEMENT WHICH CORRESPONDS TO THE DATE THIS NOTE AND
THE OTHER NOTES WERE INITIALLY ISSUED PURSUANT TO THE TERMS OF THE SECURITIES
PURCHASE AGREEMENT.
(H)
"COMMON STOCK DEEMED OUTSTANDING" MEANS, AT
ANY GIVEN TIME, THE NUMBER OF SHARES OF COMMON STOCK OUTSTANDING AT SUCH TIME,
PLUS THE NUMBER OF SHARES OF COMMON STOCK DEEMED TO BE OUTSTANDING PURSUANT TO
SECTIONS 7(A)(I) AND 7(A)(II) HEREOF REGARDLESS OF WHETHER THE OPTIONS OR
CONVERTIBLE SECURITIES ARE ACTUALLY EXERCISABLE AT SUCH TIME, BUT EXCLUDING ANY
COMMON STOCK OWNED OR HELD BY OR FOR THE ACCOUNT OF THE COMPANY OR ISSUABLE UPON
CONVERSION OF THE NOTES.
(I)
"CONTINGENT OBLIGATION" MEANS, AS TO ANY
PERSON, ANY DIRECT OR INDIRECT LIABILITY, CONTINGENT OR OTHERWISE, OF THAT
PERSON WITH RESPECT TO ANY INDEBTEDNESS, LEASE, DIVIDEND OR OTHER OBLIGATION OF
ANOTHER PERSON IF THE PRIMARY PURPOSE OR INTENT OF THE PERSON INCURRING SUCH
LIABILITY, OR THE PRIMARY EFFECT THEREOF, IS TO PROVIDE ASSURANCE TO THE OBLIGEE
OF SUCH LIABILITY THAT SUCH LIABILITY WILL BE PAID OR DISCHARGED, OR THAT ANY
AGREEMENTS RELATING THERETO WILL BE COMPLIED WITH, OR THAT THE HOLDERS OF SUCH
LIABILITY WILL BE PROTECTED (IN WHOLE OR IN PART) AGAINST LOSS WITH RESPECT
THERETO.
(J)
"CONVERTIBLE SECURITIES" MEANS ANY STOCK OR
SECURITIES (OTHER THAN OPTIONS) DIRECTLY OR INDIRECTLY CONVERTIBLE INTO OR
EXERCISABLE OR EXCHANGEABLE FOR COMMON STOCK.
(K)
"DEFEASANCE AMOUNT" MEANS THE PORTION OF THE
OUTSTANDING PRINCIPAL AMOUNT OF THIS NOTE EQUAL TO, INITIALLY ZERO (0) AND UPON
EACH LETTER OF CREDIT EVENT DATE, SHALL BE INCREASED TO THE SUM OF (I) THE
HOLDER'S PRO RATA PORTION OF THE CASH AMOUNT IN THE COLLATERAL ACCOUNT AND
(II) HOLDER LETTER OF CREDIT AMOUNT THEN OUTSTANDING.
(L)
"DEFEASANCE EVENT" SHALL BE DEEMED TO HAVE
OCCURRED WHEN THE SUM OF (I) THE CASH AMOUNT IN THE COLLATERAL ACCOUNT, (II) THE
AGGREGATE LETTERS OF CREDIT AMOUNT OF THE LETTERS OF CREDIT THEN OUTSTANDING AND
(III) ANY DRAW DOWN AMOUNTS UNDER THE LETTERS OF CREDIT IS GREATER THAN OR EQUAL
TO THE LESSER OF (A) THE AGGREGATE OUTSTANDING AMOUNTS DUE AND OWING UNDER ALL
NOTES AND (B) THIRTY TWO MILLION DOLLARS ($32,000,000).
34
(M)
"ELIGIBLE MARKET" MEANS THE PRINCIPAL MARKET, THE
AMERICAN STOCK EXCHANGE, THE NASDAQ GLOBAL SELECT MARKET, THE NASDAQ GLOBAL
MARKET OR THE NASDAQ CAPITAL MARKET.
(N)
"EQUITY CONDITIONS" MEANS THAT EACH OF THE
FOLLOWING CONDITIONS IS SATISFIED:
(I) ON EACH DAY DURING THE PERIOD BEGINNING
THREE (3) MONTHS PRIOR TO THE APPLICABLE DATE OF DETERMINATION AND ENDING ON AND
INCLUDING THE APPLICABLE DATE OF DETERMINATION (THE "EQUITY CONDITIONS MEASURING
PERIOD"), EITHER (X) THE REGISTRATION STATEMENT FILED PURSUANT TO THE
REGISTRATION RIGHTS AGREEMENT SHALL BE EFFECTIVE AND AVAILABLE FOR THE RESALE OF
ALL REMAINING REGISTRABLE SECURITIES IN ACCORDANCE WITH THE TERMS OF THE
REGISTRATION RIGHTS AGREEMENT AND THERE SHALL NOT HAVE BEEN ANY GRACE PERIODS
(AS DEFINED IN THE REGISTRATION RIGHTS AGREEMENT) OR (Y) ALL SHARES OF COMMON
STOCK ISSUABLE UPON CONVERSION OF THE NOTES SHALL BE ELIGIBLE FOR SALE WITHOUT