Common use of Exchange of Notes Clause in Contracts

Exchange of Notes. Prior to a Series B Preferred Conversion Event, in the event the Company consummates a reorganization pursuant to which a holding company ("Newco") is created which owns all of the outstanding stock of the Company, then the Company and the Purchaser shall enter into an exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical to the Purchased Notes, including its rights, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to the Purchaser. The conditions of such exchange shall include the following: (i) a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes shall be deemed to have been acquired at the Closing at which such Notes were purchased; (v) legal counsel to the Company shall deliver a legal opinion addressed to the Purchasers, dated as of the date of such exchange, in a form reasonably acceptable to the Requisite Purchasers; and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to Newco.

Exchange of Notes. Prior (i) On the Second Closing Date, all outstanding principal and all accrued but unpaid interest then outstanding on the Notes shall immediately and automatically be exchanged for such number of shares of Preferred Stock as shall be equal to a Series B Preferred Conversion Event, in the event quotient obtained by dividing the Company consummates a reorganization pursuant to which a holding company aggregate outstanding principal balance plus any accrued but unpaid interest then outstanding on the Notes on the Second Closing Date by $100.00. ("Newco"ii) is created which owns all If at the time of exchange of the outstanding stock Notes for shares of Preferred Stock there are insufficient authorized shares of Preferred Stock to permit exchange of the CompanyNotes in full, then the Company and shall take all corporate action necessary to authorize a sufficient number of shares of Preferred Stock to permit such exchange in full. No fractional shares of the Purchaser shall enter into an Preferred Stock will be issued upon exchange agreement, in a form reasonably acceptable to of the Requisite Purchasers and the Agent, pursuant Notes. In lieu of any fractional share to which the Purchased Purchaser would otherwise be entitled, the Company will pay to the Purchasers in cash the amount of the unexchanged principal balance plus accrued but unpaid interest then outstanding on the Notes will that would otherwise be exchanged for convertible notes (such fractional share. Upon exchange of the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical to the Purchased Notes, including the Purchasers shall surrender the Notes, duly endorsed, at the principal offices of the Company or any transfer agent of the Company. At its rightsexpense, privileges the Company will, as soon as practicable thereafter, issue and benefitsdeliver to such Purchasers, at such principal office, a certificate or certificates for the number of shares to which each such Purchaser is entitled upon such exchange, together with other securities and shall be otherwise in a form and substance reasonably acceptable property to the Purchaser. The conditions of which such exchange shall include the following: (i) a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free Purchaser is entitled upon such exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in its Note, including a check payable to such Purchaser for any cash amounts payable as described herein. Upon exchange of the case of any Purchaser acquiring Purchased Notes on a Closing Date, and payment for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d)fractional shares as provided above, the Exchanged Company will be forever released from all of its payment obligations and liabilities under the Notes shall be deemed with regard to have been acquired at the Closing at which such Notes were purchased; (v) legal counsel to the Company shall deliver a legal opinion addressed to the Purchasers, dated as that portion of the date of such exchange, in a form reasonably acceptable to the Requisite Purchasers; principal and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to Newcoaccrued but unpaid interest being exchanged.

Exchange of Notes. Prior The Company and Majority Holder agree that, at the Closing, and subject to a Series B Preferred Conversion Eventthe terms and conditions contained in this Agreement, in the event exchange for Majority Holder (i) delivering and surrendering to the Company consummates a reorganization pursuant to which a holding company certificates or instruments representing the Majority Holder Notes, and ("Newco"ii) is created which owns all of waiving any interest that has accrued on the outstanding stock of the CompanyMajority Holder Notes after December 15, then 2000, the Company shall (x) issue and the Purchaser shall enter into an exchange agreement, in a form reasonably acceptable deliver to Majority Holder 794.87 shares of Common Stock (rounded down to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged nearest whole number) for convertible notes each increment of $1,000 in principal amount (the "Exchanged Exchange Ratio") evidenced by the Majority Holder Notes"), of Newcoand (y) pay Majority Holder cash in an amount equal to the accrued and unpaid interest on each outstanding Majority Holder Note up to and including December 15, 2000, which Exchanged Notes payment shall be economically identical made in immediately available funds and be wired to an account of Majority Holder, the details about which account Majority Holder shall provide to the Purchased NotesCompany not less than two Business Days prior to the Closing Date. Upon delivery to Majority Holder of the stock certificate or certificates representing the Majority Holder Shares, including its rights, privileges and benefitsthe Company shall cause the certificates representing the Majority Holder Notes to be canceled whether or not such certificates were delivered to the Company by Majority Holder, and shall be otherwise in a form such canceled Majority Holder Notes and substance reasonably acceptable to the Purchaser. The conditions of certificate representing such exchange shall include the following: (i) a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged canceled Majority Holder Notes shall be deemed to have been acquired at be extinguished, null and void and canceled without any further action being required by the Closing at which such Notes were purchased; (vCompany or any other party. The Company and Majority Holder hereby agree that the Majority Holder Shares shall be issued in a transaction exempt from registration under the Securities Act by virtue of Section 3(a)(9) legal counsel thereof, and under applicable state securities laws. In addition, the Majority Holder Shares shall be issued in a transaction exempt from registration under the Securities Act by virtue of Section 4(2) thereof, and under applicable state securities laws, and accordingly, to the Company shall deliver a legal opinion addressed to extent the PurchasersSection 3(a)(9) exemption is not available, dated will be regarded as of restricted securities as such term is defined in the date of such exchange, in a form reasonably acceptable to the Requisite Purchasers; and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to NewcoSecurities Act.

Exchange of Notes. Prior (a) Subject to a Series B Preferred Conversion EventSection 3.5, Notes in the event the Company consummates a reorganization pursuant to which a holding company ("Newco") is created which owns all of the outstanding stock of the Company, then the Company and the Purchaser shall enter into an exchange agreement, in a any authorized form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will or denomination may be exchanged for convertible notes Notes in any other authorized form or denomination, any such exchange to be for an equivalent aggregate principal amount of Notes of the same Series carrying the same rate of interest and having the same Maturity Date and the same redemption and sinking fund provisions, if any. (b) Notes of any Series may be exchanged at the "Exchanged Notes")Corporate Trust Office or at such other place or places (if any) as may be specified in the Notes of such Series or in the Terms Schedule or Supplemental Indenture providing for the issuance thereof, of Newco, which Exchanged and at such other place or places (if any) as may from time to time be designated by the Issuer. Any Notes tendered for exchange shall be economically identical surrendered to the Purchased Notes, including its rights, privileges Trustee. The Issuer shall execute and benefits, and the Trustee shall certify all Notes necessary to carry out such exchanges. All Notes surrendered for exchange shall be otherwise cancelled. (c) Notes issued in a form and substance reasonably acceptable to exchange for Notes which at the Purchaser. The conditions time of such exchange shall include the following: (i) issuance have been selected or called for redemption at a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes later date shall be deemed to have been acquired at selected or called for redemption in the Closing at same manner and shall have noted thereon a statement to that effect, provided that: (i) Notes which have been selected or called for redemption may not be exchanged for Notes of larger denominations; and (ii) if a Note that has been selected or called for redemption in part is presented for exchange into Notes of smaller denominations, the Trustee shall designate, according to such method as the Trustee shall deem equitable, particular Notes were purchased; (v) legal counsel to the Company shall deliver a legal opinion addressed to the Purchasers, dated as of the date of such those issued in exchange, which shall be deemed to have been selected or called for redemption, in whole or in part, and the Trustee shall note thereon a form reasonably acceptable statement to the Requisite Purchasers; and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to Newcoeffect.

Exchange of Notes. Prior to a Series B Preferred Conversion Event(a) Holder, in the event the Company consummates a reorganization pursuant to which a holding company ("Newco") is created which owns all of the outstanding stock of the Company, then the Company and Purchaser agree that, at the Purchaser Effective Time, by virtue of the Merger and without any action on the part of Holder, the Note shall enter into an exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes such number of fully paid and nonassessable shares of Purchaser Common Stock as equals the quotient of (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical to the Purchased Notes, including its rights, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to the Purchaser. The conditions of such exchange shall include the following: (i) a Default shall not have occurred and be continuing; (iix) the exchange shall qualify as a tax-free exchange under sum of the Code; (iii) aggregate principal amount of the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued Note plus any accrued but unpaid interest on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes shall be deemed to have been acquired at the Closing at which such Notes were purchased; (v) legal counsel to the Company shall deliver a legal opinion addressed to the Purchasers, dated as of Note through the date of such exchange, in a form reasonably acceptable to the Requisite Purchasers; and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and Closing divided by (y) neither the Company nor Newco Stock Value (as defined in the Merger Agreement) (such shares to be received, the "Note Consideration"). (b) At the Effective Time, the Holder, upon surrender to the Purchaser of the Note, shall enter into be entitled to receive the Note Consideration. Until so surrendered, the Note shall, after the Effective Time, represent for all purposes only the right to receive such Note Consideration. (c) No certificates or scrip representing fractional shares of Purchaser Common Stock shall be issued upon the surrender for exchange of Note pursuant to this Section and no dividend, stock split or other change in the capital structure of Purchaser shall relate to any agreement which fractional security, and such fractional interests shall not entitle the owner thereof to vote or to any rights of a security holder. In lieu of any such fractional shares of Purchaser Common Stock, any Holder who would restrict otherwise have been entitled to a fraction of a share of Purchaser Common Stock upon surrender of Note for exchange pursuant to this Section will be paid cash upon such surrender in an amount equal to the Company's ability to pay dividends product of such fraction multiplied by the Stock Value. For purposes of this Section, a Note represented by two or make more promissory notes may be aggregated, and in no event shall any other distributions to NewcoHolder be paid an amount of cash in respect of more than one share of Purchaser Common Stock.

Exchange of Notes. Prior (a) Subject to a Section 3.5, Notes in any authorized form or denomination may be exchanged upon reasonable notice for Notes in any other authorized form or denomination, any such exchange to be for an equivalent aggregate principal amount of Notes of the same Series B Preferred Conversion Eventcarrying the same rate of interest and having the same Maturity Date and the same redemption and sinking fund provisions, if any. (b) Notes of any Series may be exchanged at the Corporate Trust Office or at such other place or places (if any) as may be specified in the event Notes of such Series or in the Company consummates a reorganization pursuant Terms Schedule or Supplemental Indenture providing for the issuance thereof, and at such other place or places (if any) as may from time to which a holding company ("Newco") is created which owns all of time be designated by the outstanding stock of Issuer. Any Notes tendered for exchange shall be surrendered to the Company, then the Company Trustee. The Issuer shall execute and the Purchaser Trustee shall enter into an certify all Notes necessary to carry out such exchanges. All Notes surrendered for exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical to cancelled. (c) Notes issued in exchange for Notes which at the Purchased Notes, including its rights, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to the Purchaser. The conditions time of such exchange shall include the following: (i) issue have been selected or called for redemption at a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes later date shall be deemed to have been acquired at selected or called for redemption in the Closing at same manner and shall have noted thereon a statement to that effect, provided that: (i) Notes which have been selected or called for redemption may not be exchanged for Notes of larger denominations; and (ii) if a Note that has been selected or called for redemption in part is presented for exchange into Notes of smaller denominations, the Trustee shall designate, according to such method as the Trustee shall deem equitable, particular Notes were purchased; (v) legal counsel to the Company shall deliver a legal opinion addressed to the Purchasers, dated as of the date of such those issued in exchange, which shall be deemed to have been selected or called for redemption, in whole or in part, and the Trustee shall note thereon a form reasonably acceptable statement to the Requisite Purchasers; and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to Newcoeffect.

Exchange of Notes. Prior (a) Subject to a Sections 2.6, 3.3 and 3.4, Notes in any authorized form or denomination may be exchanged upon reasonable notice for Notes in any other authorized form or denomination representing the same underlying indebtedness, of the same Series B Preferred Conversion Eventand Maturity Date, carrying the same interest rate and of the same aggregate principal amount as the Notes so exchanged. (b) Notes of any Series may be exchanged only at the principal office of the Trustee at Toronto, Ontario, or at such other place or places (if any) as may be specified in the event Notes of such Series and at such other place or places (if any) as may from time to time be designated by the Company consummates a reorganization pursuant to which a holding company ("Newco") is created which owns all Issuer with the approval of the outstanding stock of Trustee. Any Notes tendered for exchange shall be surrendered to the Company, then the Company Trustee. The Issuer shall execute and the Purchaser Trustee shall enter into an certify all Notes necessary to carry out exchanges as aforesaid. All Notes surrendered for exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical to cancelled. (c) Notes issued in exchange for Notes that at the Purchased Notes, including its rights, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to the Purchaser. The conditions time of such exchange shall include the following: (i) issue have been selected or called for redemption at a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes later date shall be deemed to have been acquired at selected or called for redemption in the Closing at which same manner and shall have noted thereon, by the Trustee, a statement to that effect, provided that: (i) Notes that have been selected or called for redemption may not be exchanged for Notes of larger denominations, and (ii) if a Note that has been selected or called for redemption in part is presented for exchange into Notes of smaller denominations, the Trustee shall designate, according to such method as the Trustee shall deem equitable, acting reasonably, particular Notes were purchased; (v) legal counsel to the Company shall deliver a legal opinion addressed to the Purchasers, dated as of the date of such those issued in exchange, which shall be deemed to have been selected or called for redemption, in whole or in part, and the Trustee shall note thereon a form reasonably acceptable statement to the Requisite Purchasers; and (vi) the Company and Newco shall covenant to the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to Newcoeffect.

Exchange of Notes. Prior (a) In the event that the stockholders of the Company authorize the Series A Preferred Stock, the Company may upon written notice to a the holders of the Notes (the "Notice"), exchange the Notes for shares of Series B A Preferred Conversion EventStock (the "Exchange"), provided that the Certificate of Designation for the Series A Preferred Stock shall be substantially in the form of Exhibit C hereto. (b) In the event the Company consummates a reorganization pursuant elects to which a holding company ("Newco") is created which owns all effect the Exchange, the holders of the outstanding stock of the Company, then the Company and the Purchaser shall enter into an exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical entitled to receive a number of shares of Series A Preferred Stock equal to the Purchased Notesaggregate principal amount of the Notes then being exchanged, including its rightstogether with all accrued interest thereon, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to divided by the Purchaser. The conditions of such exchange shall include conversion price for the following: Series A Preferred Stock (i) a Default shall not have occurred and be continuing; (ii) assuming that the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were Series A Preferred Stock had been issued on the First Closing Date Date, and, therefore, that the conversion price for the Series A Preferred Stock is appropriately adjusted pursuant to the terms of this AgreementSection 6 of the Certificate of Designation for any events that occur between the First Closing Date and the date on which the Exchange occurs); . (ivc) As soon as practicable after the date on which the Company delivers to the holders of the Notes the Notice, and in any event within ten (10) days thereafter, the Company, at its expense, will cause to be issued in the case name of and delivered to the holders of the Notes a certificate or certificates for the number of fully paid and non-assessable shares of Series A Preferred Stock to which such holder shall be entitled plus, in lieu of any Purchaser acquiring Purchased Notes on a Closing Datefractional share to which such holder would otherwise be entitled, for purposes cash in an amount determined in accordance with Section 9(c). The Company agrees that the shares of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes Series A Preferred Stock so issued shall be deemed to have been acquired at the Closing at which such Notes were purchased; (v) legal counsel be issued to the Company shall deliver a legal opinion addressed to holders of the Purchasers, dated Notes pro rata as the record owner of such shares as of the close or business on the date of such exchange, in a form reasonably acceptable on which the Notice shall have been delivered to the Requisite Purchasers; and (vi) holders of the Company and Newco Notes. The holders of the Notes shall covenant to promptly surrender the Purchasers that (x) at no time shall Notes upon receipt of the Company cease to be a wholly-owned subsidiary of Newco and (y) neither certificate or certificates for the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to Newco.Series A

Exchange of Notes. Prior (a) In the event that the stockholders of the Company authorize the Series A Preferred Stock, the Company may upon written notice to a the holders of the Notes (the "Notice"), exchange the Notes for shares of Series B A Preferred Conversion EventStock (the "Exchange"), provided that the Certificate of Designation for the Series A Preferred Stock shall be substantially in the form of Exhibit C hereto. (b) In the event the Company consummates a reorganization pursuant elects to which a holding company ("Newco") is created which owns all effect the Exchange, the holders of the outstanding stock of the Company, then the Company and the Purchaser shall enter into an exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical entitled to receive a number of shares of Series A Preferred Stock equal to the Purchased Notesaggregate principal amount of the Notes then being exchanged, including its rightstogether with all accrued interest thereon, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to divided by the Purchaser. The conditions of such exchange shall include conversion price for the following: Series A Preferred Stock (i) a Default shall not have occurred and be continuing; (ii) assuming that the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were Series A Preferred Stock had been issued on the Closing Date Date, and, therefore, that the conversion price for the Series A Preferred Stock is appropriately adjusted pursuant to the terms of this AgreementSection 6 of the Certificate of Designation for any events that occur between the Closing Date and the date on which the Exchange occurs); . (ivc) As soon as practicable after the date on which the Company delivers to the holders of the Notes the Notice, and in any event within ten (10) days thereafter, the Company, at its expense, will cause to be issued in the case name of and delivered to the holders of the Notes a certificate or certificates for the number of fully paid and non-assessable shares of Series A Preferred Stock to which such holder shall be entitled plus, in lieu of any Purchaser acquiring Purchased Notes on a Closing Datefractional share to which such holder would otherwise be entitled, for purposes cash in an amount determined in accordance with Section 9(c). The Company agrees that the shares of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes Series A Preferred Stock so issued shall be deemed to have been acquired at the Closing at which such Notes were purchased; (v) legal counsel be issued to the Company shall deliver a legal opinion addressed to holders of the Purchasers, dated Notes pro rata as the record owner of such shares as of the close or business on the date of such exchange, in a form reasonably acceptable on which the Notice shall have been delivered to the Requisite Purchasers; and (vi) holders of the Company and Newco Notes. The holders of the Notes shall covenant promptly surrender the Notes upon receipt of the certificate or certificates for the Series A Preferred Stock. The failure of either holder of the Notes to surrender the Purchasers that (x) at no time Notes shall not affect the Company cease to be a wholly-owned subsidiary validity of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict issuance of the Company's ability to pay dividends or make any other distributions to NewcoSeries A Preferred Stock.

Exchange of Notes. Prior to Upon the occurrence of the Maturity Date, this Note (a) shall be promptly exchanged for a Series B Preferred new note in substantially the same form and with the same terms and conditions, including, without limitation, Conversion EventPrice (with the Conversion Price computed under the Exchanged Note (as defined below) as if the Exchanged Note had been issued on April 10, 2015), as the Other Security, in an original principal amount equal to the Full Repayment Amount (the “Exchanged Note”) and for which the issuance date shall be the Maturity Date of this Note, and (b) shall be deemed to be automatically exchanged for such Exchanged Note on the Maturity Date, and such Exchanged Note shall be deemed to be outstanding on the Maturity Date, regardless of whether a physical exchange of notes has occurred. The Company shall take, or cause to be taken, all necessary steps to promptly exchange this Note for a newly issued Exchanged Note (and the Company shall take such other actions, at its expense (such as issuing the Exchanged Note in exchange for this Note) as the Holder may request to further effectuate the foregoing). Contemporaneously with, or, at the latest, no more than five (5) Business Days after, the receipt by Holder of the Exchanged Note, Holder shall return this Note to the Company for cancellation. In the event that the Company consummates a reorganization pursuant to which a holding company makes or declares any Distributions ("Newco"as defined in the Other Security) is created which owns all or grants, issues or sells any Purchase Rights (as defined in the Other Security) on the Maturity Date of the outstanding stock of the Companythis Note, then the Company and the Purchaser shall enter into an exchange agreementsuch Distributions or Purchase Rights, in a form reasonably acceptable to the Requisite Purchasers and the Agentas applicable, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical to the Purchased Notes, including its rights, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to the Purchaser. The conditions of such exchange shall include the following: (i) a Default shall not have occurred and be continuing; (ii) the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were issued on the Closing Date pursuant to the terms of this Agreement); (iv) in the case of any Purchaser acquiring Purchased Notes on a Closing Date, for purposes of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes shall be deemed to have been acquired at occurred after the Closing at which issuance of the Exchanged Note (and the Holder shall be entitled to such Notes were purchased; (v) legal counsel to Distribution or Purchase Rights as set forth in the Exchanged Note). In the event that the Maturity Date is April 10, 2017, the Company shall be required to pay Holder the Full Repayment Amount on or prior to such date; provided, that if the Full Repayment Amount is not paid to Holder on or prior to April 10, 2017, such failure to pay shall constitute an Event of Default hereunder and the Company shall be required to issue (and be automatically deemed to issue) and deliver a legal opinion addressed to the PurchasersHolder an Exchanged Note in accordance with this Section 4, dated as of the date of such exchangeApril 10, in 2017, with a form reasonably acceptable principal amount equal to the Requisite Purchasers; Full Repayment Amount (and (vi) for purposes of clarity shall bear interest at the Company and Newco shall covenant to default rate under the Purchasers that (x) at no time shall the Company cease to be a wholly-owned subsidiary of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict the Company's ability to pay dividends or make any other distributions to NewcoExchanged Note).

Exchange of Notes. Prior (a) In the event that the stockholders of the Company authorize the Series A Preferred Stock, the Company may upon written notice to a the holders of the Notes (the "Notice"), exchange the Notes for shares of Series B A Preferred Conversion EventStock (the "Exchange"), provided that the Certificate of Designation for the Series A Preferred Stock shall be substantially in the form of Exhibit C hereto. (b) In the event the Company consummates a reorganization pursuant elects to which a holding company ("Newco") is created which owns all effect the Exchange, the holders of the outstanding stock of the Company, then the Company and the Purchaser shall enter into an exchange agreement, in a form reasonably acceptable to the Requisite Purchasers and the Agent, pursuant to which the Purchased Notes will be exchanged for convertible notes (the "Exchanged Notes"), of Newco, which Exchanged Notes shall be economically identical entitled to receive a number of shares of Series A Preferred Stock equal to the Purchased Notesaggregate principal amount of the Notes then being exchanged, including its rightstogether with all accrued interest thereon, privileges and benefits, and shall be otherwise in a form and substance reasonably acceptable to divided by the Purchaser. The conditions of such exchange shall include conversion price for the following: Series A Preferred Stock (i) a Default shall not have occurred and be continuing; (ii) assuming that the exchange shall qualify as a tax-free exchange under the Code; (iii) the Exchanged Notes shall be governed by and entitled to all the benefits of this Agreement (as if such Exchanged Notes were Series A Preferred Stock had been issued on the First Closing Date Date, and, therefore, that the conversion price for the Series A Preferred Stock is appropriately adjusted pursuant to the terms of this AgreementSection 6 of the Certificate of Designation for any events that occur between the First Closing Date and the date on which the Exchange occurs); . (ivc) As soon as practicable after the date on which the Company delivers to the holders of the Notes the Notice, and in any event within ten (10) days thereafter, the Company, at its expense, will cause to be issued in the case name of and delivered to the holders of the Notes a certificate or certificates for the number of fully paid and non-assessable shares of Series A Preferred Stock to which such holder shall be entitled plus, in lieu of any Purchaser acquiring Purchased Notes on a Closing Datefractional share to which such holder would otherwise be entitled, for purposes cash in an amount determined in accordance with Section 9(c). The Company agrees that the shares of determining the applicable holding period for such Purchased Notes under Rule 144(d), the Exchanged Notes Series A Preferred Stock so issued shall be deemed to have been acquired at the Closing at which such Notes were purchased; (v) legal counsel be issued to the Company shall deliver a legal opinion addressed to holders of the Purchasers, dated Notes pro rata as the record owner of such shares as of the close or business on the date of such exchange, in a form reasonably acceptable on which the Notice shall have been delivered to the Requisite Purchasers; and (vi) holders of the Company and Newco Notes. The holders of the Notes shall covenant promptly surrender the Notes upon receipt of the certificate or certificates for the Series A Preferred Stock. The failure of either holder of the Notes to surrender the Purchasers that (x) at no time Notes shall not affect the Company cease to be a wholly-owned subsidiary validity of Newco and (y) neither the Company nor Newco shall enter into any agreement which would restrict issuance of the Company's ability to pay dividends or make any other distributions to NewcoSeries A Preferred Stock.