Common use of ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST Clause in Contracts

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the Company exercises its option to make a payment of interest on this Final Maturity Note wholly or partly in shares of Common Stock (herein sometimes called the "Stock Payment Option"), the issuance of shares of Common Stock upon such exercise of the Stock Payment Option shall have been authorized by the Board of Directors of the Company. (b) The Company shall not be permitted to exercise the Stock Payment Option with respect to any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's treasury, is insufficient to pay the portion of such interest to be paid in Common Stock; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, and such registration or approval has not been effected or obtained or is not in effect and the Registration Statement is unavailable for use by the Holder for the resale of such shares; (iii) the shares of Common Stock to be issued upon exercise of the Stock Payment Option have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and traded; (iv) the Computed Price is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) has occurred and is continuing; or (vi) the Common Stock is neither (i) listed or admitted for trading on a national securities exchange nor (ii) quoted on the Nasdaq National Market. (c) If the Stock Payment Option is elected, the Company shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; provided, however, that if in connection with any such election the Company shall have failed to deliver the appropriate number of shares of Common Stock to the Holder within three business days after the applicable Interest Payment Date, then the Company shall not be entitled to use the Stock Payment Option in respect of such Interest Payment Date, such cash interest shall be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paid. No fractional shares will be issued in payment of interest on this Final Maturity Note. In lieu thereof, the Company may issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company in payment of interest on this Final Maturity Note are sometimes referred to herein as the "Payment Shares." (d) If the Company exercises the Stock Payment Option with respect to a payment of interest on this Final Maturity Note, the Company shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of interest on this Final Maturity Note are to be received by the Holder, a Company Certificate setting forth (i) the total amount of the interest payment to which the Holder is entitled, (ii) the portion of the interest payment being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Certificate shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error. In addition, on or before the pertinent payment date, the Company shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the Company. (e) The Payment Shares, when issued pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's obligation to pay the interest on this Final Maturity Note to which such Payment Shares relate. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the Company exercises its option (x) to pay the principal amount of this Note outstanding on the Maturity Date (the "Final Principal Payment") or (y) to make a payment of interest on this Final Maturity Note Note, in either such case wholly or partly in shares of Common Stock (such payment referred to in the preceding clause (x) or (y) being herein sometimes called the "Stock Payment Option"), then in any such case the issuance of shares of Common Stock upon such exercise of the Stock Payment Option shall have been authorized by the Board of Directors of the Company. (b) The Company shall not be permitted to exercise the Stock Payment Option with respect to the Final Principal Payment or any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's treasury, is insufficient to pay the Final Principal Payment or the portion of such interest to be paid in Common Stock, as the case may be; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, regulation and such registration or approval has not been effected or obtained obtained; PROVIDED, HOWEVER, that with respect to compliance with the securities or blue sky laws of the states of the United States, the requirements of this clause (ii) shall be deemed satisfied if at the applicable time the Company is not in effect and compliance with Section 3 of the Registration Statement is unavailable for use by the Holder for the resale of such sharesNote Purchase Agreement; (iii) the shares of Common Stock to be issued upon exercise of the Stock Payment Option have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and traded; (iv) the Computed Price is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) or a Repurchase Event (as defined herein) has occurred and is continuing; or; (vi) the Common Stock is neither not (i) listed or admitted for trading on a national securities exchange nor exchange, (ii) quoted on the Nasdaq National Market or (iii) quoted on the Nasdaq SmallCap Market; or (vii) the issuance of shares of Common Stock in payment of the Final Principal Payment or interest on this Note, as the case may be, would result in any Restricted Person (as defined in Section 2.1) beneficially owning more than 4.9% of the Common Stock. determined as provided in the proviso to the first sentence of Section 2.1. (c) If the Stock Payment Option is elected, the Company shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of the Final Principal Payment or interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; providedPROVIDED, howeverHOWEVER, that if in connection with any certificates representing shares of Common Stock are delivered to the Holder subsequent to the third trading day after the applicable Interest Payment Date the Applicable Percentage used to calculate the Computed Price applicable to such election Interest Payment Date shall be reduced by one percentage point for each day after the Company shall have failed third trading day following such Interest Payment Date to deliver the appropriate number date of delivery of such shares of Common Stock to the Holder; and PROVIDED FURTHER, HOWEVER, that if certificates representing shares of Common Stock in respect of the Final Principal Payment are not delivered to the Holder within three business days on or before the third trading day after the applicable Interest Payment Maturity Date, then the Company shall not no longer be entitled to use utilize the Stock Payment Option in respect of such Interest Payment Datethe Final Principal Payment, such cash interest which shall thereafter be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paidonly. No fractional shares will be issued in payment of the Final Principal Payment or interest on this Final Maturity Note. In lieu thereof, the Company may issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company in payment of the Final Principal Payment or interest on this Final Maturity Note are sometimes referred to herein as the "Payment Shares." (d) If the Company exercises the Stock Payment Option with respect to the Final Principal Payment or a payment of interest on this Final Maturity Note, the Company shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of the Final Principal Payment or interest on this Final Maturity Note Note, as the case may be, are to be received by the Holder, a Company an Officer's Certificate setting forth (i) the total amount of the Final Principal Payment or interest payment payment, as the case may be, to which the Holder is entitled, (ii) the portion of the Final Principal Payment or the interest payment payment, as the case may be, being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of principal of or interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Officer's Certificate shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Officer's Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Officer's Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error. In addition, on or before the pertinent payment date, the Company shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the Company. (e) The Payment Shares, when issued pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's obligation to pay the principal of or interest on this Final Maturity Note to which such Payment Shares relate. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the ------------------------------------------------- Company exercises its option to make a payment of interest on this Final Maturity Note wholly or partly in shares of Common Stock (herein sometimes called the "Stock Payment Option"), the issuance of shares of Common Stock upon such exercise of the Stock Payment Option shall have been authorized by the Board of Directors of the Company. (b) The Company shall not be permitted to exercise the Stock Payment Option with respect to any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's treasury, is insufficient to pay the portion of such interest to be paid in Common Stock; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, and such registration or approval has not been effected or obtained or is not in effect and the Registration Statement is unavailable for use by the Holder for the resale of such sharesobtained; (iii) the shares of Common Stock to be issued upon exercise of the Stock Payment Option have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and traded; (iv) the Computed Price is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) has occurred and is continuing; or (vi) the Common Stock is neither (i) listed or admitted for trading on a national securities exchange nor (ii) quoted on the Nasdaq National Market. (c) If the Stock Payment Option is elected, the Company shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; provided, -------- however, that if in connection with any such election the Company shall have ------- failed to deliver the appropriate number of shares of Common Stock to the Holder within three business days after the applicable Interest Payment Date, then the Company shall not be entitled to use the Stock Payment Option in respect of such Interest Payment Date, such cash interest shall be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paid. No fractional shares will be issued in payment of interest on this Final Maturity Note. In lieu thereof, the Company may issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company in payment of interest on this Final Maturity Note are sometimes referred to herein as the "Payment Shares." (d) If the Company exercises the Stock Payment Option with respect to a payment of interest on this Final Maturity Note, the Company shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of interest on this Final Maturity Note are to be received by the Holder, a Company Certificate setting forth (i) the total amount of the interest payment to which the Holder is entitled, (ii) the portion of the interest payment being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Certificate shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error. In addition, on or before the pertinent payment date, the Company shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the Company. (e) The Payment Shares, when issued pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's obligation to pay the interest on this Final Maturity Note to which such Payment Shares relate. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the Company exercises ------------------------------------------------- Borrower desires to exercise its option to make a payment of interest on this Final Maturity Note wholly or partly in shares of Common Stock (herein hereinafter sometimes called the "Stock Payment Option"), the issuance of shares of Common Stock upon such exercise of the Stock Payment Option shall have been authorized by the Board of Directors of the Company. (b) The Company Borrower shall not be permitted to exercise the Stock Payment Option with respect to any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the CompanyBorrower's treasury, is insufficient to pay the portion of such interest to be paid in Common Stock; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, and such registration or approval has not been effected or obtained obtained; provided, however, that with respect to -------- ------- compliance with the securities or blue sky laws of the states of the United States, the requirements of this clause (ii) shall be deemed satisfied if at the applicable time the Company is not in effect and compliance with Section 3(d) of the Registration Statement is unavailable for use Rights Agreement, dated as of November 30, 1995 (the "Registration Rights Agreement"), by and between the Holder for the resale of such sharesBorrower and GFL Advantage Fund Limited, a British Virgin Islands corporation ("Advantage"); (iii) the shares of Common Stock to be issued upon exercise of the Stock Payment Option have not been authorized for listing, upon official notice of issuance, on the principal any national or regional securities exchange on which the Common Stock is then listed and tradedlisted; or have not been approved for quotation if traded in the over-the-counter market; (iv) the Computed Price is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) has occurred and is continuingcontinuing or has not been waived; or (vi) the Common Stock is neither (i) listed or admitted for trading on a national securities exchange nor (ii) quoted on in the Nasdaq National Market. (c) If the Stock Payment Option is elected, the Company Borrower shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; provided, however, that if in connection with any such election the Company shall have failed to deliver the appropriate number of shares of Common Stock to the Holder within three business days after the applicable Interest Payment Date, then the Company shall not be entitled to use the Stock Payment Option in respect of such Interest Payment Date, such cash interest shall be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paid. No fractional shares will be issued in payment of interest on this Final Maturity Note. In lieu thereof, the Company Borrower may issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company Borrower in payment of interest on this Final Maturity Note are sometimes referred to herein hereinafter as the "Payment Shares." (d) If the Company Borrower exercises the Stock Payment Option with respect to a payment of interest on this Final Maturity Note, the Company Borrower shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of interest on this Final Maturity Note are to be received by dispatched to the Holder, a Company an Officers' Certificate setting forth forth (i) the total amount of the interest payment to which the Holder is entitled, (ii) the portion of the interest payment being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Officer's Certificate shall be accompanied by the certificatescertificates and instruments, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Officers' Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Officers' Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error1.2. In addition, on or before the pertinent payment date, the Company Borrower shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the CompanyBorrower. (e) The Payment Shares, when issued dispatched pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance dispatch thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the CompanyBorrower's obligation to pay the interest on this Final Maturity Note to which such Payment Shares relate. (f) As used in this Final Maturity Section 1.2 of this Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the Company exercises its option to make a payment of interest on this Final Maturity Note wholly or partly in shares of Common Stock (herein sometimes called the "Stock “Share Interest Payment Option"”), the issuance of shares of Common Stock Interest Payment Shares upon such exercise of the Stock Share Interest Payment Option shall have been authorized by the Board of Directors of the Company. The Company may exercise its right to elect the Share Interest Payment Option with respect to any Interest Payment Date only by giving notice of such election to the Holder not less than 12 or more than 20 Trading Days prior to such Interest Payment Date, which notice shall state the percentage of the interest payable on such Interest Payment Date which is to be paid in Interest Payment Shares. If the Company elects the Share Interest Payment Option with respect to a particular Interest Payment Date, the Company shall issue to the Holder in respect of such Interest Payment Date the aggregate number of whole shares of Common Stock determined by dividing the per share Interest Share Price of the Common Stock on the applicable Interest Payment Date into an amount equal to the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of interest on this Note which is being paid in Common Stock were being paid in such lawful money. (b) The Notwithstanding anything to the contrary contained herein, the Company shall not be permitted to exercise the Stock Share Interest Payment Option with respect to any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's ’s treasury, is insufficient to pay the portion of such interest to be paid in Common Stock; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, and such registration or approval has not been effected or obtained or is not in effect and the Registration Statement is unavailable for use by the Holder Interest Share Price for the resale Interest Payment Shares is less than the par value of such sharesthe Common Stock; (iii) the outstanding shares of Common Stock to be issued upon exercise are not listed or admitted for trading on the Principal Market; or the Interest Payment Shares shall not at the time of the Stock Payment Option issuance have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and traded; Principal Market, unless in any such case described in this clause (iv) the Computed Price is less than Holder notifies the par value of Company in writing that it will accept such Interest Payment Shares notwithstanding the Common Stock;failure to satisfy this clause (iv); or (viv) an Event of Default or a Repurchase Event has occurred and is continuing. (as defined herein1) If one of the conditions prohibiting the Company from exercising the Share Interest Payment Option specified in Section 2.1(b) has occurred and is continuing; or existing, the payment of interest on such Interest Payment Date shall be deferred until the next succeeding Interest Payment Date and such interest shall continue to accrue at the Default Rate from the original Interest Payment Date for such payment of interest until paid upon (vix) the Common Stock earliest of the next Interest Payment Date on which the Company is neither permitted to exercise the Share Interest Payment Option pursuant to Section 2.1(b) and the Maturity Date or (iy) listed the earlier acceleration, repurchase or admitted for trading on a national securities exchange nor conversion of this Note in accordance with the terms hereof (ii) quoted on the Nasdaq National Marketand notwithstanding anything else in this Section no Event of Default shall have been deemed to have occurred solely by reason of such deferral in accordance with this Section 2.1(c)(1)). (c2) If Subject to Section 2.1(b), if the Stock Company elects the Share Interest Payment Option is electedwith respect to an Interest Payment Date, the Interest Payment Shares for such Interest Payment Date shall become issuable on such Interest Payment Date and the Company shall issue and dispatch deliver, or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; provideddelivered, however, that if in connection with any such election the Company shall have failed to deliver the appropriate number of shares of Common Stock to the Holder within three business days Trading Days after the applicable Interest Payment Date. If in any case the Company shall fail to deliver or cause to be delivered such number of shares of Common Stock to the Holder within such period of three Trading Days, then in addition to any other liabilities the Company may have hereunder and under applicable law (1) the Company shall pay or reimburse the Holder on demand for all out-of-pocket expenses, including, without limitation, reasonable fees and expenses of legal counsel, incurred by the Holder as a result of such failure, and (2) the Holder may by written notice (which may be given by mail, courier, personal service or telephone line facsimile transmission) or oral notice (promptly confirmed in writing), given at any time prior to delivery to the Holder of the shares of Common Stock issuable in connection with such exercise of the Share Interest Payment Option, require payment in cash of the interest in respect of which the Company exercised the Share Interest Payment Option, in which case the amount of such interest shall be immediately due and payable, with Default Interest thereon from the applicable Interest Payment Date until paid in full and the Company shall not be obligated or entitled to use the Stock issue such Interest Payment Option Shares in respect of such Interest Payment Date, such cash interest shall be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paid. No fractional shares will of Common Stock shall be issued in payment of interest on this Final Maturity Note. In lieu thereof, the Company may may, at its option, issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares America in lieu of Common Stock issued or to be issued by the Company in payment issuance of interest on this Final Maturity Note are sometimes referred to herein as the "Payment Sharessuch fractional share." (d) If Subject to Section 2.1(b), if the Company exercises elects the Stock Share Interest Payment Option with respect to a payment of interest on this Final Maturity NoteNote with respect to a particular Interest Payment Date, the Company shall deliver to the Holder, on or prior to the date on which Interest Payment Shares for such payment of interest on this Final Maturity Note are to be received by the Holder, a Company Certificate setting forth (i) the total amount of the cash interest payment to which the Holder is entitled, (ii) the portion of the such interest payment being made in Interest Payment SharesShares and the amount which is 100% thereof, (iii) the number of Interest Payment Shares allocable to such payment, as calculated pursuant to this Section 1.22.1, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c2.1(c), (v) a brief statement of the facts requiring such adjustment, and (vi) the number of Payment Shares issuable with respect to each $100 of interest on this Final Maturity Note after such adjustment and (vii) a brief statement declaration that none of the conditions set forth in Section 1.2(b2.1(b) has occurred and is existingexisting and that all of the requirements of this Section 2.1 have been met. Such Company Certificate The Interest Payment Shares shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment SharesHolder or its nominee. Such Company Certificate shall be conclusive evidence of the correctness of the calculation of the number of Interest Payment Shares allocable to the payments to which such Company Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 2.1 in the absence of manifest error. In addition, on On or before the pertinent payment date, the Company shall issue, or cause the transfer agent for the Common Stock to prepare and issue issue, the certificates representing the Interest Payment Shares in the name of the Holder or its nominee before being so delivered by the CompanyCompany on the payment date. (e) The Interest Payment Shares, when issued pursuant to and in compliance with this Section 1.22.1, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable non-assessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's ’s obligation to pay the interest on this Final Maturity Note to which such Interest Payment Shares relate. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a1) If the Company exercises its option to make a payment of interest on this Final Maturity Note wholly or partly in shares of Common Stock (herein sometimes called the "Stock “Share Interest Payment Option"”), the issuance of shares of Common Stock Interest Payment Shares upon such exercise of the Stock Share Interest Payment Option shall have been authorized by the Board of Directors of the Company. (b2) The Company shall not be permitted to exercise the Stock Share Interest Payment Option with respect to any payment of interest on this Final Maturity Note if: (i) on the date the Company notifies the Holder of the Company’s election to exercise the Share Interest Payment Option or on the date the Company is required to deliver the Interest Payment Shares, the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's ’s treasury, is insufficient to pay the portion of such interest to be paid in Common Stock; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Interest Payment Option Shares or the public resale of such shares Interest Payment Shares by the Holder would require registration or filing with or approval of any governmental authority under any law or regulation, and such registration registration, filing or approval has not been effected or obtained by or is not in effect on the date the Company notifies the Holder of the Company’s election to exercise the Share Interest Payment Option or at any time thereafter to and including the later of (A) such Interest Payment Date and (B) the date the Company delivers such Interest Payment Shares to the Holder, the Registration Statement (x) is unavailable for use by the Holder for the resale of the Interest Payment Shares or (y) is not expected to be available for such sharesuse for at least 15 Trading Days after the date the Company delivers such Interest Payment Shares to the Holder and in either case in the preceding clause (x) or (y) the Interest Payment Shares are ineligible for resale by the Holder under Rule 144(k) under the 1933 Act, unless in any such case described in this clause (ii) the Holder notifies the Company that it will accept such Interest Payment Shares notwithstanding the failure to satisfy this clause (ii); (iii) the outstanding shares of Common Stock to be issued upon exercise are neither (A) listed or admitted for trading on a national securities exchange nor (B) quoted on the Nasdaq; or the Interest Payment Shares shall not at the time of the Stock Payment Option issuance have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and tradedPrincipal Market; (iv) the Computed Interest Share Price for the Interest Payment Shares is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) has occurred and is continuingcontinuing on the date the Company makes such election or on the applicable Interest Payment Date; or (vi) the Common Stock is neither (i) listed or admitted for trading on a national securities exchange nor (ii) quoted on the Nasdaq National Marketdate the Company notifies the Holder of the Company’s election to exercise the Share Interest Payment Option or at any time thereafter to and including the later of (A) such Interest Payment Date and (B) the date the Company delivers such Interest Payment Shares to the Holder a Maximum Share Amount Deficiency exists. (c3) (A) The Company may exercise its right to elect the Share Interest Payment Option with respect to any Interest Payment Date only by giving notice of such election to the Holder not less than 15 or more than 19 Trading Days prior to such Interest Payment Date, which notice shall state the percentage of the interest payable on such Interest Payment Date which is to be paid in Interest Payment Shares. Time shall be of the essence in the giving of such notice. The Company shall have the right to elect the Share Interest Payment Option with respect to this Note only if the Company also elects the similar option which it has with respect to the Other Note for the interest due thereon on the date which is such Interest Payment Date and in each such case pro rata among this Note and the Other Note, based on the amounts of interest due on such date hereon and thereon. If the Stock Company elects the Share Interest Payment Option is electedwith respect to a particular Interest Payment Date, the Company shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for in respect of such Interest Payment Date the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Interest Share Price of the Common Stock on the applicable Interest Payment Date into an amount equal to the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of interest due on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; provided. Notwithstanding any other provision of this Note, however, that if in connection with any such election no event may the Company shall have failed to deliver the appropriate number of shares of Common Stock to the Holder within three business days after the applicable Interest Payment Date, then the Company shall not be entitled to use the Stock Payment Option issue in respect of such Interest Payment Date, such cash the interest shall be immediately due and payable on this Note and the Company shall pay the interest for such Other Note on any Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such an aggregate number of Interest Payment Date until paid. No fractional shares will be issued Shares in payment excess of the Share Interest Payment Limitation and any interest on this Final Maturity Note. In lieu thereof, the Company may issue a number of shares of Common Stock which reflects a rounding up Note not paid in Interest Payment Shares due to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company in payment of interest on this Final Maturity Note are sometimes referred to herein as the "Share Interest Payment Shares." (d) If the Company exercises the Stock Payment Option with respect to a payment of interest on this Final Maturity Note, the Company shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of interest on this Final Maturity Note are to be received by the Holder, a Company Certificate setting forth (i) the total amount of the interest payment to which the Holder is entitled, (ii) the portion of the interest payment being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Certificate Limitation shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error. In addition, on or before the pertinent payment date, the Company shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the Company. (e) The Payment Shares, when issued pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's obligation to pay the interest on this Final Maturity Note to which such Payment Shares relatecash. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the Company exercises its option (x) to pay the principal amount of this Note outstanding on the Maturity Date (the "Final Principal Payment") or (y) to make a payment of interest on this Final Maturity Note Note, in either such case wholly or partly in shares of Common Co con Stock (such payment referred to in the preceding clause (x) or (y) being herein sometimes called the "Stock Payment Option"), then in any such case the issuance of shares of Common Stock upon such exercise of the Stock Payment Option shall have been authorized by the Board of Directors of the Company. (b) The Company shall not be permitted to exercise the Stock Payment Option with respect to the Final Principal Payment or any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's treasury, is insufficient to pay the Final Principal Payment or the portion of such interest to be paid in Common Stock, as the case may be; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, and such registration or approval has not been effected or obtained obtained; PROVIDED, HOWEVER, that with respect to compliance with the securities or blue sky laws of the states of the United States, the requirements of this clause (ii) shall be deemed satisfied if at the applicable time the Company is not in effect and compliance with Section 3 of the Registration Statement is unavailable for use by the Holder for the resale of such sharesNote Purchase Agreement; (iii) the shares of Common Stock to be issued upon exercise of the Stock Payment Option have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and traded; (iv) the Computed Price is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) or a Repurchase Event (as defined herein) has occurred and is continuing; or; (vi) the Common Stock is neither ia not (i) listed or admitted for trading on a national securities exchange nor exchange, (ii) quoted on the Nasdaq National Market or (iii) quoted on the Nasdaq SmallCap Market; or (vii) the issuance of shares of Common Stock in payment of the Final Principal Payment or interest on this Note, as the case may be, would result in any Restricted Person (as defined in Section 2.1) beneficially owning more than 4.9% of the Common Stock, determined as provided in the proviso to the first sentence of Section 2.1. (c) If the Stock Payment Option is elected, the Company shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of the Final Principal Payment or interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; providedPROVIDED, howeverHOWEVER, that if in connection with any certificates representing shares of Common Stock are delivered to the Holder subsequent to the third trading day after the applicable Interest Payment Date the Applicable Percentage used to calculate the Computed Price applicable to such election Interest Payment Date shall be reduced by one percentage point for each day after the Company shall have failed third trading day following such Interest Payment Date to deliver the appropriate number date of delivery of such shares of Common Stock to the Holder; and PROVIDED FURTHER, HOWEVER, that if certificates representing shares of Common Stock in respect of the Final Principal Payment are not delivered to the Holder within three business days on or before the third trading day after the applicable Interest Payment Maturity Date, then the Company shall not no longer be entitled to use utilize the Stock Payment Option in respect of such Interest Payment Datethe Final Principal Payment, such cash interest which shall thereafter be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paidonly. No fractional shares will be issued in payment of the Final Principal Payment or interest on this Final Maturity Note. In lieu thereof, the Company may issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company in payment of the Final Principal Payment or interest on this Final Maturity Note are sometimes referred to herein as the "Payment Shares." (d) If the Company exercises the Stock Payment Option with respect to the Final Principal Payment or a payment of interest on this Final Maturity Note, the Company shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of the Final Principal Payment or interest on this Final Maturity Note Note, as the case may be, are to be received by the Holder, a Company an Officer's Certificate setting forth (i) the total amount of the Final Principal Payment or interest payment payment, as the case may be, to which the Holder is entitled, (ii) the portion of the Final Principal Payment or the interest payment payment, as the case may be, being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of principal of or interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Officer's Certificate shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Officer's Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Officer's Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error. In addition, on or before the pertinent payment date, the Company shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the Company. (e) The Payment Shares, when issued pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's obligation to pay the principal of or interest on this Final Maturity Note to which such Payment Shares relate. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein:

ISSUANCE OF COMMON STOCK IN LIEU OF CASH INTEREST. (a) If the Company exercises its option (x) to pay the principal amount of this Note outstanding on the Maturity Date (the "Final Principal Payment") or (y) to make a payment of interest on this Final Maturity Note Note, in either such case wholly or partly in shares of Common Stock (such payment referred to in the preceding clause (x) or (y) being herein sometimes called the "Stock Payment Option"), then in any such case the issuance of shares of Common Stock upon such exercise of the Stock Payment Option shall have been authorized by the Board of Directors of the Company. (b) The Company shall not be permitted to exercise the Stock Payment Option with respect to the Final Principal Payment or any payment of interest on this Final Maturity Note if: (i) the number of shares of Common Stock authorized, unissued and unreserved for all purposes, or held in the Company's treasury, is insufficient to pay the Final Principal Payment or the portion of such interest to be paid in Common Stock, as the case may be; (ii) the issuance or delivery of shares of Common Stock pursuant to the Stock Payment Option or the public resale of such shares by the Holder would require registration with or approval of any governmental authority under any law or regulation, and such registration or approval has not been effected or obtained obtained; provided, however, that with respect to compliance with the securities or blue sky laws of the states of the United States, the requirements of this clause (ii) shall be deemed satisfied if at the applicable time the Company is not in effect and compliance with Section 3 of the Registration Statement is unavailable for use by the Holder for the resale of such sharesNote Purchase Agreement; (iii) the shares of Common Stock to be issued upon exercise of the Stock Payment Option have not been authorized for listing, upon official notice of issuance, on the principal securities exchange on which the Common Stock is then listed and traded; (iv) the Computed Price is less than the par value of the Common Stock; (v) an Event of Default (as defined herein) or a Repurchase Event (as defined herein) has occurred and is continuing; or; (vi) the Common Stock is neither not (i) listed or admitted for trading on a national securities exchange nor exchange, (ii) quoted on the Nasdaq National Market or (iii) quoted on the Nasdaq SmallCap Market; or (vii) the issuance of shares of Common Stock in payment of the Final Principal Payment or interest on this Note, as the case may be, would result in any Restricted Person (as defined in Section 2.1) beneficially owning more than 4.9% of the Common Stock, determined as provided in the proviso to the first sentence of Section 2.1. (c) If the Stock Payment Option is elected, the Company shall issue and dispatch or cause to be dispatched to the Holder one or more certificates for the aggregate number of whole shares of Common Stock determined by dividing the per share Computed Price of the Common Stock on the applicable Interest Payment Date into the total amount of lawful money of the United States of America which the Holder would receive if the aggregate amount of the Final Principal Payment or interest on this Final Maturity Note which is being paid in shares of Common Stock were being paid in such lawful money; providedPROVIDED, howeverHOWEVER, that if in connection with any certificates representing shares of Common Stock are delivered to the Holder subsequent to the third trading day after the applicable Interest Payment Date the Applicable Percentage used to calculate the Computed Price applicable to such election Interest Payment Date shall be reduced by one percentage point for each day after the Company shall have failed third trading day following such Interest Payment Date to deliver the appropriate number date of delivery of such shares of Common Stock to the Holder; and PROVIDED FURTHER, HOWEVER, that if certificates representing shares of Common Stock in respect of the Final Principal Payment are not delivered to the Holder within three business days on or before the third trading day after the applicable Interest Payment Maturity Date, then the Company shall not no longer be entitled to use utilize the Stock Payment Option in respect of such Interest Payment Datethe Final Principal Payment, such cash interest which shall thereafter be immediately due and payable and the Company shall pay the interest for such Interest Payment Date in cash with Default Interest, at the rate provided in this Note, from such Interest Payment Date until paidonly. No fractional shares will be issued in payment of the Final Principal Payment or interest on this Final Maturity Note. In lieu thereof, the Company may issue a number of shares of Common Stock which reflects a rounding up to the next whole number or may pay lawful money of the United States of America. The shares of Common Stock issued or to be issued by the Company in payment of the Final Principal Payment or interest on this Final Maturity Note are sometimes referred to herein as the "Payment Shares." (d) If the Company exercises the Stock Payment Option with respect to the Final Principal Payment or a payment of interest on this Final Maturity Note, the Company shall deliver to the Holder, on or prior to the date on which Payment Shares for such payment of the Final Principal Payment or interest on this Final Maturity Note Note, as the case may be, are to be received by the Holder, a Company an Officer's Certificate setting forth (i) the total amount of the Final Principal Payment or interest payment payment, as the case may be, to which the Holder is entitled, (ii) the portion of the Final Principal Payment or the interest payment payment, as the case may be, being made in Payment Shares, (iii) the number of Payment Shares allocable to such payment, as calculated pursuant to this Section 1.2, (iv) any rounding adjustment to such number or any payment necessary to be made pursuant to Section 1.2(c), (v) a brief statement of the facts requiring such adjustment, (vi) the number of Payment Shares issuable with respect to each $100 of principal of or interest on this Final Maturity Note after such adjustment and (vii) a brief statement that none of the conditions set forth in Section 1.2(b) has occurred and is existing. Such Company Officer's Certificate shall be accompanied by the certificates, each duly issued in the name of the Holder, representing the Payment Shares. Such Company Officer's Certificate shall be conclusive evidence of the correctness of the calculation of the number of Payment Shares allocable to the payments to which such Company Officer's Certificate relates and of any adjustments to such number made pursuant to this Section 1.2 in the absence of manifest error. In addition, on or before the pertinent payment date, the Company shall cause the transfer agent for the Common Stock to prepare and issue the certificates representing the Payment Shares in the name of the Holder before being so delivered by the Company. (e) The Payment Shares, when issued pursuant to and in compliance with this Section 1.2, shall be, and for all purposes shall be deemed to be, validly issued, fully paid and nonassessable shares of Common Stock; the issuance and delivery thereof is in all respects hereby authorized; and the issuance thereof, together with lawful money of the United States of America, if any, paid in lieu of fractional shares of such Common Stock, will be, and for all purposes shall be deemed to be, in full discharge and satisfaction of the Company's obligation to pay the principal of or interest on this Final Maturity Note to which such Payment Shares relate. (f) As used in this Final Maturity Note, the following terms shall have the meanings provided herein: