TO 100% OF THE
PRINCIPAL AMOUNT THEREOF (THE "PURCHASE PRICE").
THE NOTE WILL BE SECURED
PURSUANT TO THE SECURITY AGREEMENT.
SECTION 2.2
NOTE CONVERSION.
(A)
OPTIONAL CONVERSION.
THE INVESTOR MAY, AT ITS OPTION, PURCHASE
SHARES OF THE COMPANY'S COMMON STOCK BY CONVERTING AMOUNTS OUTSTANDING UNDER THE
NOTE OR, IF APPLICABLE, THE ADDITIONAL NOTE AND THE SUBSEQUENT NOTE, AT THE
APPLICABLE CONVERSION PRICE AS PROVIDED THEREIN (IN EACH CASE, A "NOTE
CONVERSION CLOSING").
AT EACH NOTE CONVERSION CLOSING, THE COMPANY SHALL ISSUE
CERTIFICATES REPRESENTING ANY SHARES PURCHASED UNDER THIS SECTION 2.2 IN A FORM
ACCEPTABLE TO THE INVESTOR AND INVESTOR'S COUNSEL, AND THE INVESTOR SHALL PAY
THE CONVERSION PRICE OF $63.84 PER SHARE (SUBJECT TO ADJUSTMENT AS PROVIDED
THEREIN) FOR SUCH SHARES BY SURRENDERING THE APPLICABLE NOTE(S) TO THE COMPANY.
(B)
MANDATORY CONVERSION.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, IF AFTER THE CLOSING DATE, (I) THE AVERAGE PRICE OF THE COMPANY'S
COMMON STOCK ON THE TRADING MARKET EXCEEDS $128.00 PER SHARE (SUBJECT TO
ADJUSTMENT FOR STOCK SPLITS, DIVIDENDS AND OTHER APPROPRIATE ADJUSTMENTS) FOR
ANY 30 CONSECUTIVE TRADING DAYS (THE "THRESHOLD PERIOD"), THE COMPANY SHALL HAVE
THE OPTION, WITHIN TWO (2) TRADING DAYS AFTER THE END OF ANY SUCH THRESHOLD
PERIOD, DELIVER A WRITTEN NOTICE TO THE INVESTOR (A "MANDATORY CONVERSION
NOTICE" AND THE DATE OF SUCH NOTICE, THE "MANDATORY CONVERSION NOTICE DATE") TO
CAUSE THE INVESTOR TO SURRENDER THE NOTE AND SEEK IMMEDIATE CONVERSION OF THE
REMAINING AMOUNTS DUE UNDER THE NOTE ON SUCH MANDATORY CONVERSION NOTICE DATE
INTO THE COMPANY'S COMMON STOCK AT THE CONVERSION PRICE OF $63.84 PER SHARE
(SUBJECT TO ADJUSTMENT AS PROVIDED UNDER THE NOTE).
SECTION 2.3
USE OF PROCEEDS.
THE COMPANY SHALL USE THE CASH PROCEEDS OF THE
SALE OF THE NOTES (A) FOR THE COMPANY'S STRATEGIC ACQUISITION AND WORKING
CAPITAL NEEDS AND (B) TO PAY ANY LEGAL FEES AND EXPENSES INCURRED IN CONNECTION
WITH THE DRAFTING, NEGOTIATION, DUE DILIGENCE AND EXECUTION OF THIS AGREEMENT
AND THE OTHER TRANSACTION DOCUMENTS (INCLUDING THOSE DOCUMENTS DELIVERED IN
CONNECTION WITH THE ISSUANCE OF THE NOTE AND THE CONVERSION SHARES TO THE
INVESTOR ON THE CLOSING DATE) (WHICH, IN THE CASE OF COUNSEL TO INVESTORS, SHALL
BE LIMITED TO $30,000 IN ACCORDANCE WITH THE TERMS SET FORTH IN SECTION 11.7
BELOW).
7
ARTICLE III
THE CLOSING
SECTION 3.1
CLOSING.
THE PURCHASE AND SALE OF THE NOTES SHALL TAKE PLACE AT
THE OFFICES OF THE COMPANY, AT 10:00 A.M., ON DECEMBER 18, 2007, OR SUCH OTHER
TIME AS MAY BE DESIGNATED BY THE COMPANY IN WRITING (THE "CLOSING").
AT THE
CLOSING, THE COMPANY SHALL DELIVER TO THE INVESTOR THE NOTE THAT THE INVESTOR IS
PURCHASING AGAINST DELIVERY TO THE COMPANY BY THE INVESTOR OF A CHECK OR WIRE
TRANSFER IN THE AMOUNT OF $20,000,000.00 PAYABLE TO THE COMPANY'S ORDER (OR BY
WIRE OF FUNDS IN SUCH AMOUNT TO THE COMPANY'S DESIGNATED BANK ACCOUNT).
SECTION 3.2
CLOSING DELIVERIES.
(A)
COMPANY DELIVERIES.
ON THE CLOSING DATE, THE COMPANY SHALL DELIVER OR
CAUSE TO BE DELIVERED TO THE INVESTOR THE FOLLOWING:
(I)
THIS