RIGHT, POWER OR
PRIVILEGE UNDER THIS NOTE SHALL OPERATE AS A WAIVER HEREUNDER AND ANY SINGLE OR
PARTIAL EXERCISE OF ANY SUCH RIGHT, POWER OR PRIVILEGE SHALL NOT PRECLUDE ANY
LATER EXERCISE THEREOF OR ANY EXERCISE OF ANY OTHER RIGHT, POWER OR PRIVILEGE
HEREUNDER.
8.
CERTAIN WAIVERS BY THE COMPANY.
EXCEPT AS EXPRESSLY PROVIDED
OTHERWISE IN THIS NOTE, THE COMPANY AND EVERY ENDORSER OR GUARANTOR, IF ANY, OF
THIS NOTE WAIVE PRESENTMENT, DEMAND, NOTICE, PROTEST AND ALL OTHER DEMANDS AND
NOTICES IN CONNECTION WITH THE DELIVERY, ACCEPTANCE, PERFORMANCE, DEFAULT OR
ENFORCEMENT OF THIS NOTE, AND ASSENT TO ANY EXTENSION OR POSTPONEMENT OF THE
TIME OF PAYMENT OR ANY OTHER INDULGENCE, TO ANY SUBSTITUTION, EXCHANGE OR
RELEASE OF COLLATERAL AVAILABLE TO HOLDER, IF ANY, AND TO THE ADDITION OR
RELEASE OF ANY OTHER PARTY OR PERSON PRIMARILY OR SECONDARILY LIABLE.
3
9.
NO UNLAWFUL INTEREST.
NOTWITHSTANDING ANYTHING HEREIN TO THE
CONTRARY, PAYMENT OF ANY INTEREST OR OTHER AMOUNT HEREUNDER SHALL NOT BE
REQUIRED IF SUCH PAYMENT WOULD BE UNLAWFUL.
IN ANY SUCH EVENT, THIS NOTE SHALL
AUTOMATICALLY BE DEEMED AMENDED SO THAT INTEREST CHARGES AND ALL OTHER PAYMENTS
REQUIRED HEREUNDER, INDIVIDUALLY AND IN THE AGGREGATE, SHALL BE EQUAL TO BUT NOT
GREATER THAN THE MAXIMUM PERMITTED BY LAW.
AS A CONDITION TO ITS OBLIGATION TO
MAKE ANY PAYMENT OF INTEREST HEREUNDER WITHOUT WITHHOLDING AS MAY OTHERWISE BE
REQUIRED UNDER APPLICABLE U.S. TAX LAWS, THE COMPANY MAY REQUIRE THAT THE HOLDER
SUBMIT TO THE COMPANY A PROPERLY COMPLETED IRS FORM W-8 OR SIMILAR OR SUCCESSOR
FORM SUFFICIENTLY DEMONSTRATING TO THE REASONABLE SATISFACTION OF THE COMPANY
THAT NO SUCH WITHHOLDING IS REQUIRED.
10.
REPRESENTATIONS, WARRANTIES AND COVENANTS OF HOLDER.
BY ACCEPTING
THIS NOTE, HOLDER REPRESENTS AND WARRANTS TO THE COMPANY, AND AGREES, AS
FOLLOWS:
(A)
THE PRINCIPAL ADDRESS OF HOLDER IS OUTSIDE
OF THE UNITED STATES, AND HOLDER IS NOT A U.S. PERSON AS SUCH TERM IS DEFINED
AND USED IN REGULATION S.
(B)
AT THE TIME THE "BUY" ORDER WAS ORIGINATED
IN RESPECT OF HOLDER'S ACQUISITION OF THIS NOTE, HOLDER WAS OUTSIDE OF THE U.S.,
AND HOLDER IS OUTSIDE THE U.S. AS OF THE DATE OF THE EXECUTION AND DELIVERY OF
THIS NOTE BY HOLDER.
NO OFFER TO ACQUIRE THIS NOTE WAS MADE TO HOLDER OR ITS
REPRESENTATIVES INSIDE THE UNITED STATES.
(C)
HOLDER IS AN "ACCREDITED INVESTOR" WITHIN
THE MEANING OF RULE 501(A) UNDER THE SECURITIES ACT.
(D)
HOLDER IS ACQUIRING THIS NOTE AND WILL
ACQUIRE ANY CONVERSION SHARES FOR HIS/HER/ITS OWN ACCOUNT, NOT ON BEHALF OR FOR
THE ACCOUNT OF ANY U.S. PERSON, AND NEITHER THE PURCHASE OF THIS NOTE NOR THE
ACQUISITION OF THE CONVERSION SHARES HAS BEEN PRE-ARRANGED WITH A PURCHASER IN
THE U.S.
(E)
THE HOLDER WILL MAKE ALL RESALES OF THIS
NOTE AND ANY CONVERSION SHARES ONLY OUTSIDE OF THE UNITED STATES IN COMPLIANCE
WITH REGULATION S, OR PURSUANT TO A REGISTRATION STATEMENT UNDER THE SECURITIES
ACT, OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT.
SPECIFICALLY, HOLDER WILL NOT RESELL THIS