THIS CONVERTIBLE DEBENTURE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED, OR UNDER THE LAWS OF ANY STATE OF OTHER JURISDICTION. THIS
CONVERTIBLE DEBENTURE MAY NOT BE SOLD OR OTHERWISE TRANSFERRED EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID ACT OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS THEREOF.
XXXXXXX-XXXXXX, INC.
CONVERTIBLE SUBORDINATED NOTE DUE 2006
$________ April __, 1999
For value received, Xxxxxxx-Xxxxxx, Inc., a Delaware corporation (the
"Company"), hereby promises to pay to ____________________ or its assigns who
are registered as the holder hereof on the Security Register maintained by the
Company (hereinafter referred to as the "Holder"), on or before April 15, 2006,
the principal sum of ____________________ Dollars ($______) or such part thereof
as then remains unpaid, to pay interest from the date hereof on the whole amount
of said principal sum remaining from time to time unpaid at the rate of six
percent (6%) per annum, such interest to be payable monthly in arrears on the
last business day of each month, the first such payment to be due and payable on
May 31, 1999, until the whole amount of the principal hereof remaining unpaid
shall become due and payable, and to pay interest at the rate of eight percent
(8%) (so far as the same may be legally enforceable) on all overdue principal
and interest. Principal, premium, if any, and interest shall be payable in
lawful money of the United States of America, by check to the Holder at the
address of the Holder set forth in the Security Register. Interest shall be
computed on the basis of a 360-day year and a 30-day month. The rate at which
interest is required to be paid may also change under certain circumstances as
described in the Agreement (defined below).
This Note is issued pursuant to and is entitled to the benefits of a
certain Convertible Debenture Purchase Agreement, dated as of April 15, 1999,
between the Company and the Purchasers named therein (as the same may be amended
from time to time, hereinafter referred to as the "Agreement"), and each Holder
of this Note, by his acceptance hereof, agrees to be bound by the provisions of
the Agreement, including, without limitation, that (i) the principal of and
interest on this Note is subordinated to Senior Debt, as defined in the
Agreement, (ii) in case of certain Events of Default defined in the Agreement,
the principal of this Note may become or may be declared due and payable in the
manner and with the effect provided in the Agreement and (iii) this Note is
convertible at the option of the Holder hereof into shares of Common Stock of
the Company in the manner set forth in this Agreement.
As further provided in the Agreement, upon surrender of this Note for
transfer or exchange, a new Note or new Notes of the same tenor dated the date
to which interest has been paid on the surrender Note and in an aggregate
principal amount equal to the unpaid principal amount of the Note so surrendered
will be issued to, and registered in the name of, the transferee or transferees.
The Company may treat the person in whose name this Note is registered as the
owner hereof for the purpose of receiving payment and for all other purposes.
In case any payment herein provided for shall not be paid when due, the
Company promises to pay all cost of collection, including all reasonable
attorney's fees.
This Note shall be governed by, and construed in accordance with, the laws
of the State of Delaware and shall have the effect of a sealed instrument.
The Company and all endorsers and guarantors of this Note herein waive
presentment, demand, notice of nonpayment, protest and all other demands and
notices in connection with the delivery, acceptance, performance or enforcement
of this Note.
XXXXXXX-XXXXXX, INC.
By:__________________________
Title:_______________________
Attest:
By:__________________________
Title:_______________________
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