HOLDER ON SUCH CONVERSION AMOUNT FROM THE OPTIONAL
REDEMPTION DATE THROUGH THE THIRD (3RD) ANNIVERSARY OF THE ISSUANCE DATE AND
(II) THE AMOUNT OF INTEREST ALREADY PAID TO THE HOLDER THROUGH THE OPTIONAL
REDEMPTION DATE.
(GG)
"OPTIONAL CONVERSION PRICE" MEANS, THE LOWER OF (I) THE APPLICABLE
CONVERSION PRICE AND (II) THAT PRICE WHICH SHALL BE COMPUTED AS 85% OF THE
ARITHMETIC AVERAGE OF THE WEIGHTED AVERAGE PRICE OF THE COMMON STOCK FOR THE
SIXTY (60) CONSECUTIVE TRADING DAY PERIOD IMMEDIATELY FOLLOWING THE APPLICABLE
HOLDER OPTIONAL CONVERSION/REDEMPTION DATE (EACH SUCH PERIOD, AN "OPTIONAL
CONVERSION/REDEMPTION MEASURING PERIOD").
ALL SUCH DETERMINATIONS TO BE
APPROPRIATELY ADJUSTED FOR ANY STOCK SPLIT, STOCK DIVIDEND, STOCK COMBINATION
DURING OR OTHER SIMILAR TRANSACTION THAT PROPORTIONATELY DECREASES OR INCREASES
THE COMMON STOCK THE APPLICABLE SUCH OPTIONAL CONVERSION/REDEMPTION MEASURING
PERIOD.
(HH)
"OPTIONS" MEANS ANY RIGHTS, WARRANTS OR OPTIONS TO SUBSCRIBE FOR OR
PURCHASE SHARES OF COMMON STOCK OR CONVERTIBLE SECURITIES.
(II)
"PARENT ENTITY" OF A PERSON MEANS AN ENTITY THAT, DIRECTLY OR
INDIRECTLY, CONTROLS THE APPLICABLE PERSON AND WHOSE COMMON STOCK OR EQUIVALENT
EQUITY SECURITY IS QUOTED OR LISTED ON AN ELIGIBLE MARKET, OR, IF THERE IS MORE
THAN ONE SUCH PERSON OR PARENT ENTITY, THE PERSON OR PARENT ENTITY WITH THE
LARGEST PUBLIC MARKET CAPITALIZATION AS OF THE DATE OF CONSUMMATION OF THE
FUNDAMENTAL TRANSACTION.
(JJ)
"PERMITTED DIVIDENDS AND REDEMPTIONS" MEANS (I) SUCH CASH
DIVIDENDS PAYABLE PURSUANT TO ARTICLE 9(A) OF THE CERTIFICATE OF DESIGNATIONS OF
THE SERIES B PREFERRED STOCK OF THE COMPANY (THE "SERIES B PREFERRED STOCK")
WHICH ARE OUTSTANDING ON THE
34
DAY IMMEDIATELY PRECEDING THE SUBSCRIPTION DATE AND WHICH MAY BE ISSUED PURSUANT
TO (III) BELOW IN THIS SUBSECTION (JJ), (II) SUCH LIQUIDITY EVENT PAYMENTS AS
DEFINED IN AND PURSUANT TO ARTICLE 9(C)(1) OF THE CERTIFICATE OF DESIGNATIONS OF
THE SERIES B PREFERRED STOCK AND (III) SUCH ADDITIONAL SHARES OF SERIES B
PREFERRED STOCK AS MAY BE ISSUED IN THE FUTURE AS STOCK DIVIDENDS PURSUANT TO
ARTICLE 9(A) OF THE CERTIFICATE OF DESIGNATIONS OF THE SERIES B PREFERRED STOCK,
PROVIDED, THAT, OTHER THAN WITH RESPECT TO CLAUSE (II), NO EQUITY CONDITIONS
FAILURE HAS OCCURRED AS OF THE APPLICABLE DIVIDEND DATE; PROVIDED, FURTHER, THAT
THE TERMS OF SUCH SERIES B PREFERRED STOCK ARE NOT AMENDED, MODIFIED OR CHANGED
ON OR AFTER THE SUBSCRIPTION DATE.
(KK)
"PERMITTED INDEBTEDNESS" MEANS (I) THE INDEBTEDNESS EVIDENCED BY
THIS NOTE AND THE OTHER NOTES, (II) PERMITTED SENIOR INDEBTEDNESS AND (III)
OTHER UNSECURED INDEBTEDNESS INCURRED BY THE COMPANY AND/OR ANY OF ITS
SUBSIDIARIES THAT IS MADE EXPRESSLY SUBORDINATE IN RIGHT OF PAYMENT TO THE
INDEBTEDNESS EVIDENCED BY THIS NOTE, AS REFLECTED IN A WRITTEN AGREEMENT
ACCEPTABLE TO THE REQUIRED HOLDERS AND APPROVED BY THE REQUIRED HOLDERS IN
WRITING, AND WHICH INDEBTEDNESS DOES NOT PROVIDE AT ANY TIME FOR (A) THE
PAYMENT, PREPAYMENT, REPAYMENT, REPURCHASE OR DEFEASANCE, DIRECTLY OR
INDIRECTLY, OF ANY PRINCIPAL OR PREMIUM, IF ANY, THEREON UNTIL NINETY-ONE (91)
DAYS AFTER THE MATURITY DATE OR LATER AND (B) TOTAL INTEREST AND FEES AT A RATE
IN EXCESS OF THE INTEREST