NEITHER THESE SECURITIES NOR THE SECURITIES INTO WHICH THESE SECURITIES ARE
CONVERTIBLE HAVE BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION OR
THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN
AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO
SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
COMPANY. THESE SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OF THESE
SECURITIES MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER
LOAN SECURED BY SUCH SECURITIES.
THIS INSTRUMENT AND THE RIGHTS AND OBLIGATIONS EVIDENCED HEREBY ARE SUBORDINATE
IN THE MANNER AND TO THE EXTENT SET FORTH IN THAT CERTAIN INTERCREDITOR
AGREEMENT (AS THE SAME MAY BE AMENDED OR OTHERWISE MODIFIED FROM TIME TO TIME
PURSUANT TO THE TERMS THEREOF, THE "INTERCREDITOR AGREEMENT"), DATED AS OF
SEPTEMBER 28, 2007, AMONG HERCULES TECHNOLOGY GROWTH CAPITAL, INC. (THE
"LENDER") AND EACH OF IROQUOIS CAPITAL LP, CRANSHIRE CAPITAL, L.P., PORTSIDE
GROWTH AND OPPORTUNITY FUND AND ROCKMORE INVESTMENT MASTER FUND LTD (THE
"SUBORDINATED CREDITORS"). EACH HOLDER OF THIS INSTRUMENT, BY ITS ACCEPTANCE
HEREOF, IRREVOCABLY AGREES TO BE BOUND BY THE PROVISIONS OF THE INTERCREDITOR
AGREEMENT APPLICABLE TO A "SUBORDINATED CREDITOR" (AS SUCH TERM IS DEFINED IN
THE INTERCREDITOR AGREEMENT), AS IF SUCH HOLDER WERE AN ORIGINAL SIGNATORY
THERETO AS A SUBORDINATED CREDITOR FOR ALL PURPOSES OF THE INTERCREDITOR
AGREEMENT.
Original Issue Date: October 25, 2004
Original Conversion Price (subject to adjustment herein): $2.29 [Note:
Conversion Price reduced to $1.15 per antidilution provisions as a result of the
September 30, 2006 Preferred Stock financing.]
As Amended and Restated: $0.70
$_______________
AMENDED AND RESTATED VARIABLE RATE
SECURED SUBORDINATED CONVERTIBLE DEBENTURE
1
THIS AMENDED AND RESTATED VARIABLE RATE SECURED SUBORDINATED CONVERTIBLE
DEBENTURE (this "Debenture") is one of a series of duly authorized and issued
Amended and Restated Variable Rate Secured Subordinated Convertible Debentures
of Diomed Holdings, Inc., a Delaware corporation, having a principal place of
business at One Dundee Park, Andover, MA 01810 (the "Company"), which amend,
supplement, modify and completely restate and supersede the Variable Rate
Convertible Debentures, due October 25, 2008 (collectively, the "Original
Debentures") initially issued on October 25, 2004.
FOR VALUE RECEIVED, the Company promises to pay to ________________________ or
its registered assigns (the "Holder"), the principal sum of $_______________ on
October 25, 2008 or such earlier date as the Debentures are required or
permitted to be repaid as provided hereunder (the "Maturity Date"), in cash or
in Common Stock, subject to the terms and conditions herein, and to pay interest
to the Holder on the aggregate unconverted and then outstanding principal amount
of this Debenture in accordance with the provisions