SHALL MAINTAIN RECORDS SHOWING THE
PRINCIPAL, INTEREST AND LATE CHARGES, IF ANY, CONVERTED AND THE DATES OF SUCH
CONVERSIONS OR SHALL USE SUCH OTHER METHOD, REASONABLY SATISFACTORY TO THE
HOLDER AND THE COMPANY, SO AS NOT TO REQUIRE PHYSICAL SURRENDER OF THIS NOTE
UPON CONVERSION.
(IV)
PRO RATA CONVERSION; DISPUTES.
IN THE EVENT THAT THE COMPANY
RECEIVES A CONVERSION NOTICE FROM MORE THAN ONE HOLDER OF NOTES FOR THE SAME
CONVERSION DATE AND THE COMPANY CAN CONVERT SOME, BUT NOT ALL, OF SUCH PORTIONS
OF THE NOTES SUBMITTED FOR CONVERSION, THE COMPANY, SUBJECT TO SECTION 3(D),
SHALL CONVERT FROM EACH HOLDER OF NOTES ELECTING TO HAVE NOTES CONVERTED ON SUCH
DATE A PRO RATA AMOUNT OF SUCH HOLDER'S PORTION OF ITS NOTES SUBMITTED FOR
CONVERSION BASED ON THE PRINCIPAL AMOUNT OF NOTES SUBMITTED FOR CONVERSION ON
SUCH DATE BY SUCH HOLDER RELATIVE TO THE AGGREGATE PRINCIPAL AMOUNT OF ALL NOTES
SUBMITTED FOR CONVERSION ON SUCH DATE.
IN THE EVENT OF A DISPUTE AS TO THE
NUMBER OF SHARES OF COMMON STOCK ISSUABLE TO THE HOLDER IN CONNECTION WITH A
CONVERSION OF THIS NOTE, THE COMPANY SHALL ISSUE TO THE HOLDER THE NUMBER OF
SHARES OF COMMON STOCK NOT IN DISPUTE AND RESOLVE SUCH DISPUTE IN ACCORDANCE
WITH SECTION 24.
(V)
MANDATORY CONVERSION.
(A)
GENERAL.
IF AT ANY TIME FROM AND AFTER THE
FIRST ANNIVERSARY OF THE CLOSING DATE (THE "MANDATORY CONVERSION ELIGIBILITY
DATE"), (1) THE ARITHMETIC AVERAGE OF THE WEIGHTED AVERAGE PRICE OF THE COMMON
STOCK FOR A PERIOD OF AT LEAST THIRTY (30) CONSECUTIVE TRADING DAYS FOLLOWING
THE MANDATORY CONVERSION ELIGIBILITY DATE (THE "MANDATORY CONVERSION MEASURING
PERIOD") EQUALS OR EXCEEDS 175% OF THE CONVERSION PRICE ON THE ISSUANCE DATE
(SUBJECT TO APPROPRIATE ADJUSTMENTS FOR ANY STOCK DIVIDEND, STOCK SPLIT, STOCK
COMBINATION, RECLASSIFICATION OR SIMILAR TRANSACTION AFTER THE SUBSCRIPTION
DATE)
5
(THE "PRICING CONDITION"), (2) THE ARITHMETIC AVERAGE OF THE DOLLAR TRADING
VOLUME (AS REPORTED ON BLOOMBERG) OF THE COMMON STOCK ON THE PRINCIPAL MARKET IS
AT LEAST $1,000,000 PER TRADING DAY (THE "VOLUME CONDITION") DURING SUCH
MANDATORY CONVERSION MEASURING PERIOD, AND (3) THERE IS NOT THEN AN EQUITY
CONDITIONS FAILURE, THE COMPANY SHALL HAVE THE RIGHT TO REQUIRE THE HOLDER TO
CONVERT ALL OR ANY PORTION OF THE CONVERSION AMOUNT THEN REMAINING UNDER THIS
NOTE, IN EACH CASE AS DESIGNATED IN THE MANDATORY CONVERSION NOTICE (AS DEFINED
BELOW) INTO FULLY PAID, VALIDLY ISSUED AND NONASSESSABLE SHARES OF COMMON STOCK
IN ACCORDANCE WITH SECTION 3(C) HEREOF AT THE CONVERSION RATE AS OF THE
MANDATORY CONVERSION DATE (AS DEFINED BELOW) (A "MANDATORY CONVERSION");
PROVIDED, THAT THE COMPANY SHALL NOT EXERCISE ITS RIGHT OF MANDATORY CONVERSION
HEREUNDER MORE THAN ONE (1) TIME IN ANY CONSECUTIVE SIX (6) MONTH PERIOD; AND
PROVIDED FURTHER, THAT THE AGGREGATE CONVERSION AMOUNT SUBJECT TO THE MANDATORY
CONVERSION FOR ALL NOTES PURSUANT TO ANY ONE MANDATORY CONVERSION NOTICE SHALL
BE AT LEAST $5,000,000.
THE COMPANY MAY EXERCISE ITS RIGHT TO REQUIRE
CONVERSION UNDER THIS SECTION 3(C)(V) BY DELIVERING WITHIN NOT MORE THAN TWO
(2) TRADING DAYS FOLLOWING