WITH
SUCH ORIGINAL OF THIS NOTE.
UPON SURRENDER BY HOLDER TO THE COMPANY OF THE
ORIGINAL OF THIS NOTE AT THE OFFICE OF THE COMPANY, THERE SHALL BE ISSUED AND
DELIVERED TO HOLDER PROMPTLY AT SUCH OFFICE AND IN HOLDER'S NAME AS SHOWN ON THE
ORIGINAL OF THIS NOTE, A CERTIFICATE OR CERTIFICATES FOR THE APPLICABLE NUMBER
OF CONVERSION SHARES ON THE CONVERSION DATE.
ANY SUCH CERTIFICATE SHALL BEAR A
CONSPICUOUS LEGEND SIMILAR TO THAT SET FORTH ON PAGE 1 OF THIS NOTE (INSOFAR AS
APPLICABLE) AND OTHERWISE REFERRING TO REITERATING THE RESTRICTIONS ON TRANSFER
AND OTHER TERMS HEREOF APPLICABLE TO THE CONVERSION SHARES UPON ISSUANCE.
2
(D)
NO FRACTIONAL SHARES.
THE NUMBER OF COMMON
SHARES RESULTING FROM A CONVERSION OF THIS NOTE PURSUANT TO SECTION 3(A) ABOVE
SHALL BE ROUNDED UP TO THE NEXT HIGHER INTEGRAL SHARE OF COMMON STOCK, AND NO
FRACTIONAL SHARES SHALL BE ISSUABLE BY THE COMPANY UPON CONVERSION OF THIS
NOTE.
CONVERSION OF THIS NOTE SHALL BE DEEMED PAYMENT IN FULL OF THIS NOTE AND
THIS NOTE SHALL THEREUPON BE CANCELLED.
4.
THE INDEBTEDNESS EVIDENCED HEREBY RANKS PARI PASSU IN RIGHT OF
PAYMENT TO THE INDEBTEDNESS EVIDENCED FROM TIME TO TIME BY THE OTHER OF THE
OFFERED NOTES (AS DEFINED BELOW) AND TO ANY OTHER CONVERTIBLE DEBT SECURITIES OF
THE COMPANY NOW OR HEREAFTER EXISTING AND SO PROVIDING, AND THE INDEBTEDNESS
EVIDENCED HEREBY RANKS SENIOR IN RIGHT OF PAYMENT TO ALL CLASSES AND SERIES OF
THE COMPANY'S CAPITAL STOCK.
BY ACCEPTING THIS NOTE THE HOLDER DOES EXPRESSLY
CONSENT TO THE AFORESAID RANKING IN RIGHT OF PAYMENT AND AGREES TO PERFORM, FROM
TIME TO TIME, SUCH ACTS, AND TO EXECUTE, ACKNOWLEDGE AND/OR DELIVER SUCH OTHER
INSTRUMENTS, DOCUMENTS AND AGREEMENTS, AS MAY FROM TIME TO TIME BE REQUESTED BY
THE COMPANY, OR AS MAY FROM TIME TO TIME OTHERWISE BE REASONABLY REQUESTED,
NECESSARY OR REQUIRED, TO SO CONFIRM OR PROVIDE.
5.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY
REPRESENTS AND WARRANTS TO HOLDER AS FOLLOWS:
(A)
THE EXECUTION AND DELIVERY BY THE COMPANY
OF THIS NOTE (I) ARE WITHIN THE COMPANY'S CORPORATE POWER AND AUTHORITY, AND
(II) HAVE BEEN DULY AUTHORIZED BY ALL NECESSARY CORPORATE ACTION.
(B)
THIS NOTE IS A LEGALLY BINDING OBLIGATION OF
THE COMPANY, ENFORCEABLE AGAINST THE COMPANY IN ACCORDANCE WITH THE TERMS
HEREOF, EXCEPT TO THE EXTENT THAT (I) SUCH ENFORCEABILITY IS LIMITED BY
BANKRUPTCY, INSOLVENCY, REORGANIZATION, MORATORIUM OR OTHER LAWS RELATING TO OR
AFFECTING GENERALLY THE ENFORCEMENT OF CREDITORS' RIGHTS, AND (II) THE
AVAILABILITY OF THE REMEDY OF SPECIFIC PERFORMANCE OR IN INJUNCTIVE OR OTHER
EQUITABLE RELIEF IS SUBJECT TO THE DISCRETION OF THE COURT BEFORE WHICH ANY
PROCEEDING THEREFORE MAY BE BROUGHT.
6.
USE OF PROCEEDS.
THE PROCEEDS RECEIVED BY THE COMPANY FROM THE
SALE OF THIS NOTE SHALL BE USED BY THE COMPANY FOR WORKING CAPITAL, REDEMPTION
OR REPAYMENT OF DEBT OR OTHER GENERAL CORPORATE PURPOSES.
7.
NO WAIVER IN CERTAIN CIRCUMSTANCES.
NO COURSE OF DEALING OF
HOLDER NOR ANY FAILURE OR DELAY BY HOLDER TO EXERCISE ANY