Common use of Mechanics of Exchange Clause in Contracts

Mechanics of Exchange. (i) So long as this Note is outstanding, if the Company enters into any Equity Financing following the Subscription Date, the Company shall deliver a written notice (the "Company Exchange Notice") to the Holder no later than five (5) Business Days prior to the consummation of such Equity Financing setting forth the terms of such Equity Financing and setting forth the rights of the Holder under this Section 3. (ii) The Holder shall have the right to exchange any portion of the Outstanding Amount (such amount, the "Exchange Amount") for the securities being issued in such Equity Financing (the "New Securities") at any time following the Company Exchange Notice and no later than ten (10) Business Days following the consummation of such Equity Financing. To exchange any Outstanding Amount into shares of New Securities, the Holder shall transmit by facsimile (or otherwise deliver), for receipt on or prior to 5:00 p.m., New York City time, on such date (the "Exchange Date"), a copy of an executed notice of exchange in the form attached hereto as Exhibit I (the "Exchange Notice") to the Company. The Company shall deliver the New Securities to the Holder no later than the later of (i) three (3) Business Days following receipt of the Exchange Notice indicating the Exchange Amount and (ii) the consummation of such Equity Financing. The Holder shall be deemed to have tendered 115% of the Exchange Amount as payment of the purchase price in such Equity Financing. If the Holder does not exchange the entire amount of the Outstanding Amount under this Note after any Equity Financing, then the Holder shall receive an additional amount on the Maturity Date equal to 15% of the Outstanding Amount on the Maturity Date (the "Additional Maturity Date Payment"). (iii) Delivery of physical certificates shall be deemed to have been made if delivered personally or when delivered to a nationally recognized overnight carrier. If this Note is physically surrendered for exchange as required by Section 15 and the outstanding Principal of this Note is greater than the Exchange Amount, then the Company shall as soon as practicable and in no event later than three Business Days after receipt of this Note and at its own expense, issue and deliver to the holder a new Note (in accordance with Section 15(d)) representing the outstanding Principal not exchanged.

Mechanics of Exchange. (i) So long as 3.1 Subject to the terms of this Note is outstandingSection 3, if the Company enters into any Equity Financing following the Subscription DateIPO has not been consummated on or before 5:00 p.m. on November 15, the Company shall deliver a written notice 2008 (the "Company Trigger Date"), then beginning on the Business Day immediately after the Trigger Date (the "Initial Exchange NoticeDate") to and ending at the Holder no later than five (5) Business Days prior to close of business on the consummation of such Equity Financing setting forth the terms of such Equity Financing and setting forth the rights Termination Date, each of the Holder under this Section 3. (ii) The Holder Purchasers shall have the right to exchange any portion each of the Outstanding Amount (Purchased Common Units into the Applicable Number of Exchange Shares. 3.2 Notwithstanding Section 3.1 above, each Purchaser shall have the option, during the period beginning on the Initial Exchange Date and ending on the date that Stockholder Approval is received by Parent, to exchange each Purchased Common Unit then owned by such amountPurchaser into the Applicable Number of Exchange Shares; provided, however, that the "maximum number of Exchange Amount") for Shares a Purchaser may receive in connection with an exchange effectuated pursuant to this Section 3.2 shall be equal to such Purchaser's Pro Rata Share of the securities being issued in such Equity Financing Initial Exchange Shares. 3.3 On the Initial Exchange Date, Parent shall take all action necessary to convene a meeting of its stockholders (the "New SecuritiesParent Stockholders") at to consider and vote upon the issuance of the aggregate number of shares of Common Stock issuable upon exchange of the Purchased Common Units for shares of Common Stock pursuant to this Agreement in excess of the Initial Exchange Shares as soon as practicable, but in any time following the Company Exchange Notice and no event not later than ten (10) Business Days following 60 days after the consummation of such Equity Financing. To exchange any Outstanding Amount into shares of New Securities, the Holder shall transmit by facsimile (or otherwise deliver), for receipt on or prior to 5:00 p.m., New York City time, on such date Trigger Date (the "Exchange DateStockholders' Meeting"). Except as provided in this Section 3.3, a copy the board of an executed directors of Parent shall, in connection with such meeting, recommend approval of the issuance of shares of Common Stock in excess of the Initial Exchange Shares and take all other lawful action to solicit the approval of the issuance of shares of Common Stock in excess of the Initial Exchange Shares by the Parent Stockholders; provided, however, that the board of directors of Parent shall not be required to recommend such approval if it advised by counsel that such recommendation would violate its fiduciary duties to Parent's stockholders under applicable Law. 3.4 In order to exchange the Purchased Common Units for the Exchange Shares, the holder thereof shall surrender at the office of the Transfer Agent, the certificate or certificates therefor, duly endorsed or assigned to Parent or in blank, and give written notice of exchange to Parent in accordance with Section 8 hereof, together with the form letter attached hereto as Exhibit I (A, that such holder elects to convert the "Exchange Notice") to the Company. The Company shall deliver the New Securities to the Holder no later than the later number of (i) three (3) Business Days following receipt of the Exchange Notice indicating the Exchange Amount and (ii) the consummation of Purchased Common Units specified by such Equity Financing. The Holder shall be deemed to have tendered 115% of the Exchange Amount as payment of the purchase price holder in such Equity Financingnotice. If the Holder does not exchange the entire amount of the Outstanding Amount under this Note after any Equity Financing, then the Holder shall receive an additional amount on the Maturity Date equal to 15% of the Outstanding Amount on the Maturity Date (the "Additional Maturity Date Payment"). (iii) Delivery of physical certificates Purchased Common Units shall be deemed to have been made if delivered personally exchanged immediately prior to the close of business on the day of surrender of the certificates for such Purchased Common Units for exchange in accordance with the foregoing provisions, and at such time the rights of the holder of such Purchased Common Units as holders thereof shall cease and from and after such time the person or when delivered persons entitled to receive the Exchange Shares issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Exchange Shares. As promptly as practicable on or after the Initial Exchange Date, Parent shall cause the Transfer Agent to issue and deliver at such office a nationally recognized overnight carriercertificate or certificates for the number of full shares of Common Stock issuable upon such exchange, together with payment in lieu of any fraction of a share, as provided in Section 3.7, to the person or persons entitled to receive the same. If fewer than all the Purchased Common Units represented by a certificate are exchanged, upon such exchange the Partnership shall (or cause the Transfer Agent for the Purchased Common Units to) issue a new certificate representing the Purchased Common Units not so exchanged. 3.5 Notwithstanding anything to the contrary set forth in this Note is physically surrendered for exchange as required by Section 15 and Agreement, prior to the outstanding Principal receipt of this Note is greater than the Exchange AmountStockholder Approval, then the Company shall as soon as practicable and in no event later than three Business Days shall the total number of Exchange Shares that Parent shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that Parent can issue without Stockholder Approval pursuant to any rule of AMEX, or any other national exchange on which Parent's Common Stock is then traded including, without limitation, Section 713 of the AMEX Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after receipt the date of this Note Agreement. 3.6 If Parent at any time shall consolidate or merge with or sell or convey all or substantially all of its assets to any other Person, the Purchaser shall thereafter be entitled to exchange its Purchased Common Units into such number and at its own expensekind of securities and property as would have been issuable or distributable on account of such consolidation, issue and deliver merger, sale or conveyance upon or with respect to the holder securities to be received upon an exchange of Purchased Common Units immediately prior to such consolidation, merger, sale or conveyance. Parent shall take such steps in connection with such consolidation or merger or sale as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or property thereafter deliverable upon an exchange of Purchased Common Units. The foregoing provisions shall similarly apply to successive transactions of a new Note similar nature by any such successor or purchaser. Without limiting the generality of the foregoing, the registration rights provisions hereof shall apply to the securities of such successor or purchaser after any such consolidation, merger, sale or conveyance. 3.7 No fractional shares of Common Stock of Parent will be issued in connection with an exchange of Purchased Common Units, but in lieu of such fractional shares, Parent shall make a cash payment thereafter upon the basis of the Market Price of its Common Stock on the date of such exchange. 3.8 Each Management Stockholder hereby agrees to (i) vote all such Management Stockholder's Voting Securities and (ii) take all other necessary or desirable actions within such Management Stockholder's control (whether in accordance with such Management Stockholder's capacity as a stockholder of Parent or otherwise, and including, without limitation, attendance at meetings, in person or by proxy, for purposes of obtaining a quorum and execution of written consents in lieu of meetings), in each case, in favor of exchange of the Purchased Common Units for shares of Common Stock in excess of the Initial Exchange Shares. 3.9 From and after the date hereof, Parent shall use its commercially reasonable efforts to obtain the agreement of each of the directors of Parent to the terms of Section 15(d)) representing the outstanding Principal not exchanged3.8.

Mechanics of Exchange. (i) So long as 3.1 Subject to the terms of this Note is outstandingSection 3, if the Company enters into any Equity Financing following IPO has not been consummated on or before 5:00 p.m. on November 15, 2008 (the Subscription “Trigger Date”), then beginning on the Business Day immediately after the Trigger Date (the “Initial Exchange Date”) and ending at the close of business on the Termination Date, the Company shall deliver a written notice (the "Company Exchange Notice") to the Holder no later than five (5) Business Days prior to the consummation of such Equity Financing setting forth the terms of such Equity Financing and setting forth the rights each of the Holder under this Section 3. (ii) The Holder Purchasers shall have the right to exchange any portion each of the Outstanding Amount Purchased Common Units into the Applicable Number of Exchange Shares. 3.2 Notwithstanding Section 3.1 above, each Purchaser shall have the option, during the period beginning on the Initial Exchange Date and ending on the date that Stockholder Approval is received by Parent, to exchange each Purchased Common Unit then owned by such Purchaser into the Applicable Number of Exchange Shares; provided, however, that the maximum number of Exchange Shares a Purchaser may receive in connection with an exchange effectuated pursuant to this Section 3.2 shall be equal to such Purchaser’s Pro Rata Share of the Initial Exchange Shares. 3.3 On the Initial Exchange Date, Parent shall take all action necessary to convene a meeting of its stockholders (such amountthe “Parent Stockholders”) to consider and vote upon the issuance of the aggregate number of shares of Common Stock issuable upon exchange of the Purchased Common Units for shares of Common Stock pursuant to this Agreement in excess of the Initial Exchange Shares as soon as practicable, but in any event not later than 60 days after the Trigger Date (the “Stockholders’ Meeting”). Except as provided in this Section 3.3, the "board of directors of Parent shall, in connection with such meeting, recommend approval of the issuance of shares of Common Stock in excess of the Initial Exchange Amount") Shares and take all other lawful action to solicit the approval of the issuance of shares of Common Stock in excess of the Initial Exchange Shares by the Parent Stockholders; provided, however, that the board of directors of Parent shall not be required to recommend such approval if it advised by counsel that such recommendation would violate its fiduciary duties to Parent’s stockholders under applicable Law. 3.4 In order to exchange the Purchased Common Units for the securities being issued in such Equity Financing (the "New Securities") at any time following the Company Exchange Notice and no later than ten (10) Business Days following the consummation of such Equity Financing. To exchange any Outstanding Amount into shares of New SecuritiesShares, the Holder holder thereof shall transmit by facsimile (surrender at the office of the Transfer Agent, the certificate or otherwise deliver)certificates therefor, for receipt on duly endorsed or prior assigned to 5:00 p.m.Parent or in blank, New York City timeand give written notice to Parent in accordance with Section 8 hereof, on such date (together with the "Exchange Date"), a copy of an executed notice of exchange in the form letter attached hereto as Exhibit I (A, that such holder elects to convert the "Exchange Notice") to the Company. The Company shall deliver the New Securities to the Holder no later than the later number of (i) three (3) Business Days following receipt of the Exchange Notice indicating the Exchange Amount and (ii) the consummation of Purchased Common Units specified by such Equity Financing. The Holder shall be deemed to have tendered 115% of the Exchange Amount as payment of the purchase price holder in such Equity Financingnotice. If the Holder does not exchange the entire amount of the Outstanding Amount under this Note after any Equity Financing, then the Holder shall receive an additional amount on the Maturity Date equal to 15% of the Outstanding Amount on the Maturity Date (the "Additional Maturity Date Payment"). (iii) Delivery of physical certificates Purchased Common Units shall be deemed to have been made if delivered personally exchanged immediately prior to the close of business on the day of surrender of the certificates for such Purchased Common Units for exchange in accordance with the foregoing provisions, and at such time the rights of the holder of such Purchased Common Units as holders thereof shall cease and from and after such time the person or when delivered persons entitled to receive the Exchange Shares issuable upon such conversion shall be treated for all purposes as the record holder or holders of such Exchange Shares. As promptly as practicable on or after the Initial Exchange Date, Parent shall cause the Transfer Agent to issue and deliver at such office a nationally recognized overnight carriercertificate or certificates for the number of full shares of Common Stock issuable upon such exchange, together with payment in lieu of any fraction of a share, as provided in Section 3.7, to the person or persons entitled to receive the same. If fewer than all the Purchased Common Units represented by a certificate are exchanged, upon such exchange the Partnership shall (or cause the Transfer Agent for the Purchased Common Units to) issue a new certificate representing the Purchased Common Units not so exchanged. 3.5 Notwithstanding anything to the contrary set forth in this Note is physically surrendered for exchange as required by Section 15 and Agreement, prior to the outstanding Principal receipt of this Note is greater than the Exchange AmountStockholder Approval, then the Company shall as soon as practicable and in no event later than three Business Days shall the total number of Exchange Shares that Parent shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that Parent can issue without Stockholder Approval pursuant to any rule of AMEX, or any other national exchange on which Parent’s Common Stock is then traded including, without limitation, Section 713 of the AMEX Listing Standards, Policies and Requirements, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after receipt the date of this Note Agreement. 3.6 If Parent at any time shall consolidate or merge with or sell or convey all or substantially all of its assets to any other Person, the Purchaser shall thereafter be entitled to exchange its Purchased Common Units into such number and at its own expensekind of securities and property as would have been issuable or distributable on account of such consolidation, issue and deliver merger, sale or conveyance upon or with respect to the holder securities to be received upon an exchange of Purchased Common Units immediately prior to such consolidation, merger, sale or conveyance. Parent shall take such steps in connection with such consolidation or merger or sale as may be necessary to assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be, in relation to any securities or property thereafter deliverable upon an exchange of Purchased Common Units. The foregoing provisions shall similarly apply to successive transactions of a new Note similar nature by any such successor or purchaser. Without limiting the generality of the foregoing, the registration rights provisions hereof shall apply to the securities of such successor or purchaser after any such consolidation, merger, sale or conveyance. 3.7 No fractional shares of Common Stock of Parent will be issued in connection with an exchange of Purchased Common Units, but in lieu of such fractional shares, Parent shall make a cash payment thereafter upon the basis of the Market Price of its Common Stock on the date of such exchange. 3.8 Each Management Stockholder hereby agrees to (i) vote all such Management Stockholder’s Voting Securities and (ii) take all other necessary or desirable actions within such Management Stockholder’s control (whether in accordance with such Management Stockholder’s capacity as a stockholder of Parent or otherwise, and including, without limitation, attendance at meetings, in person or by proxy, for purposes of obtaining a quorum and execution of written consents in lieu of meetings), in each case, in favor of exchange of the Purchased Common Units for shares of Common Stock in excess of the Initial Exchange Shares. 3.9 From and after the date hereof, Parent shall use its commercially reasonable efforts to obtain the agreement of each of the directors of Parent to the terms of Section 15(d)) representing the outstanding Principal not exchanged3.8.

Mechanics of Exchange. (i) So long as 3.1 Subject to the terms of this Note is outstandingSection 3, if the Company enters into any Equity Financing IPO has not been consummated on or before 5:00 p.m. on June 30, 2009 (the “Trigger Date”), then beginning on the Business Day immediately following the Subscription Trigger Date (the “Initial Exchange Date”) and ending at the close of business on the Termination Date, the Company shall deliver a written notice (the "Company Exchange Notice") to the Holder no later than five (5) Business Days prior to the consummation of such Equity Financing setting forth the terms of such Equity Financing and setting forth the rights each of the Holder under this Section 3. (ii) The Holder Purchasers shall have the right to exchange any portion each of the Outstanding Amount Purchased Common Units into the Applicable Number of Exchange Shares. (such amountc) Section 3.3 of the Original Agreement is hereby amended to read, in its entirety, as follows: Beginning on the Business Day immediately following the date that Purchasers owning twenty percent (20%) of the Purchased Common Units have delivered written notice to the Partnership and Parent that they have elected to exchange Purchased Common Units for Common Stock (the “Election Date”), Parent shall take all action necessary to convene a meeting of its stockholders (the “Parent Stockholders”) to consider and vote upon the issuance of the aggregate number of shares of Common Stock issuable upon exchange of the Purchased Common Units for shares of Common Stock pursuant to this Agreement in excess of the Initial Exchange Shares as soon as practicable, but in any event not later than 60 days after the Election Date (the “Stockholders’ Meeting”). Except as provided in this Section 3.3, the "board of directors of Parent shall, in connection with such meeting, recommend approval of the issuance of shares of Common Stock in excess of the Initial Exchange Amount"Shares and take all other lawful action to solicit the approval of the issuance of shares of Common Stock in excess of the Initial Exchange Shares by the Parent Stockholders; provided, however, that the board of directors of Parent shall not be required to recommend such approval if it advised by counsel that such recommendation would violate its fiduciary duties to Parent’s stockholders under applicable Law. (d) Section 3.5 of the Original Agreement is hereby amended to read, in its entirety, as follows: Notwithstanding anything to the contrary set forth in this Agreement, prior to the receipt of Stockholder Approval, in no event shall the total number of Exchange Shares that Parent shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that Parent can issue without Stockholder Approval pursuant to any rule of Nasdaq or any other national exchange on which Parent’s Common Stock is then quoted or traded, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the securities being issued Common Stock occurring after the date of this Agreement. (e) Section 7.1(a) of the Original Agreement is hereby amended to read, in its entirety, as follows: subject to receipt of necessary information from the Purchasers after prompt request from Parent to the Purchasers to provide such Equity Financing (the "New Securities") at any time following the Company Exchange Notice and information, no later than the 30th day following the Election Date (the “Filing Date”), prepare and file with the Commission a registration statement on Form S-3 or such other successor form (except that if Parent is not then eligible to register for resale the Exchange Shares on Form S-3, in which case such registration shall be on Form S-1 or any successor form) (a “Registration Statement”) to enable the resale of the Exchange Shares, by the Purchasers or their transferees from time to time over the Nasdaq or any other national exchange on which Parent’s Common Stock is then quoted or traded, or in privately-negotiated transactions. No Purchaser may include any Exchange Shares in the Registration Statement pursuant to this Agreement unless such Purchaser furnishes to Parent in writing within ten (10) Business Days business days after receipt of request therefor, such requested information; (f) Section 7.1(b) of the Original Agreement is hereby amended to read, in its entirety, as follows: use its commercially reasonable efforts, subject to receipt of necessary information from the Purchasers after prompt request from Parent to the Purchasers to provide such information, to cause the Registration Statement to become effective prior to the 120th day following the consummation Election Date; provided, however, that if Parent has filed the Registration Statement by the Filing Date and the Commission has not declared the Registration Statement effective prior to the date that is specified in Rule 3-12 of such Equity Financing. To exchange any Outstanding Amount into shares of New SecuritiesRegulation S-X promulgated by the Commission, then the Holder time period for becoming effective shall transmit by facsimile be extended to the 180th day following the Election Date (or otherwise deliverthe “Effectiveness Date”); (g) Section 7.2 is hereby amended to read, for receipt in its entirety, as follows: Parent and the Purchasers agree that the Purchasers will suffer damages if the Registration Statement is not declared effective on or prior to 5:00 p.m.Effectiveness Date. Parent and the Purchasers further agree that it would not be feasible to ascertain the extent of such damages with precision. Accordingly, New York City time, if the Registration Statement is not declared effective on such date (the "Exchange Date"), a copy of an executed notice of exchange in the form attached hereto as Exhibit I (the "Exchange Notice") or prior to the Company. The Company Effectiveness Date, Parent shall deliver the New Securities to the Holder no later than the later pay as Liquidated Damages, and not as a penalty, 1% of (i) three the Purchase Price multiplied by (3ii) Business Days following receipt the number of Exchange Shares held by such Purchaser (such product being the “Liquidated Damages Amount”) per thirty (30) day period (which shall be pro rated for such periods less than thirty (30) days) until the Registration Statement is declared effective. The Liquidated Damages Amount will be paid in cash, unless Parent certifies that such cash payment would result in a breach under its credit facilities or other documents evidencing indebtedness, then Parent may pay the Liquidated Damages Amount in kind in the form of additional Common Stock. The determination of the Exchange Notice indicating number of shares of Common Stock to be issued as the Exchange Liquidated Damages Amount shall be equal to the Liquidated Damages Amount divided by the lesser of (i) the Purchase Price per share; and (ii) the consummation closing price of such Equity FinancingParent’s Common Stock on the Nasdaq or any other national exchange on which Parent’s Common Stock is then quoted or traded on the date on which the Liquidated Damages payment is due. In no event shall Parent be required to issue fractional shares pursuant to the terms of this Section 7.2 and all fractional shares shall be rounded down to the next lowest number of whole shares. The Holder shall be deemed to have tendered 115% parties agree that the amounts set forth in this Section 7.2 represent a reasonable estimate on the part of the Exchange Amount parties, as payment of the purchase price in such Equity Financing. If date of this Agreement, of the Holder does not exchange the entire amount of damages that will be incurred by the Outstanding Amount under Purchasers if the Registration Statement is not declared effective on or prior to the Effectiveness Date. Notwithstanding anything to the contrary set forth in this Note after any Equity FinancingAgreement, then the Holder shall receive an additional amount on the Maturity Date equal to 15% of the Outstanding Amount on the Maturity Date (the "Additional Maturity Date Payment"). (iii) Delivery of physical certificates shall be deemed to have been made if delivered personally or when delivered to a nationally recognized overnight carrier. If this Note is physically surrendered for exchange as required by Section 15 and the outstanding Principal of this Note is greater than the Exchange Amount, then the Company shall as soon as practicable and in no event later than three Business Days shall the total number of Exchange Shares that Parent shall be required to issue pursuant to this Agreement exceed the maximum number of shares of Common Stock that Parent can issue without Stockholder Approval pursuant to any rule of Nasdaq, or any other national exchange on which Parent’s Common Stock is then quoted or traded, subject to equitable adjustments from time to time for stock-splits, stock dividends, combinations, capital reorganizations and similar events relating to the Common Stock occurring after receipt the date of this Note and at Agreement. Section 3. Section 3 of Amendment No. 1 is hereby amended to read in its own expenseentirety, issue and deliver to the holder a new Note (in accordance with Section 15(d)) representing the outstanding Principal not exchanged.as follows: