<pre>
Exhibit 10.2 Form of Callable
Secured Convertible Note due March 17, 2007
THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"). THE SECURITIES
MAY NOT BE
SOLD, TRANSFERRED OR ASSIGNED IN THE
ABSENCE OF AN EFFECTIVE REGISTRATION
STATEMENT FOR THE SECURITIES UNDER SAID
ACT, OR AN OPINION OF COUNSEL IN FORM,
SUBSTANCE AND SCOPE CUSTOMARY FOR OPINIONS
OF COUNSEL IN COMPARABLE
TRANSACTIONS THAT REGISTRATION IS NOT
REQUIRED UNDER SAID ACT OR UNLESS SOLD
PURSUANT TO RULE 144 OR REGULATION S UNDER
SAID ACT.
CALLABLE SECURED CONVERTIBLE NOTE
Valencia, California
March 17, 2005 $__________
FOR VALUE RECEIVED, CONECTISYS CORPORATION,
a Colorado corporation (hereinafter
called the "Borrower"), hereby promises to
pay to the order of
___________________ or registered assigns
(the "Holder") the sum of
$__________, on March 17, 2007 (the
"Maturity Date"), and to pay interest on
the unpaid principal balance hereof at the
rate of eight percent (8%) (the
"Interest Rate") per annum from March 17,
2005 (the "Issue Date") until the
same becomes due and payable, whether at
maturity or upon acceleration or by
prepayment or otherwise, or so much thereof
as may be advanced and be
outstanding, with interest thereon, to be
computed on each advance from the
date of its disbursement. Any amount of principal or
interest on this Note
which is not paid when due shall bear
interest at the rate of fifteen percent
(15%) per annum from the due date thereof
until the same is paid ("Default
Interest"). Interest shall commence accruing
on the Issue Date, shall be
computed on the basis of a 365-day year and
the actual number of days elapsed
and shall be payable quarterly provided
that no interest shall be due and
payable for any month in which the Trading
Price (as such term is defined
below) of the Common Stock (as such term is
defined below) is greater than
$.0035 for each Trading Day (as such term
is defined below) of the month. All
payments due hereunder (to the extent not
converted into common stock, no par
value per share, of the Borrower (the
"Common Stock") in accordance with the
terms hereof) shall be made in lawful money
of the United States of America
provided that interest payable for the
first month following the Issue Date
shall be payable on the date hereof and
deemed for all purposes as a prepayment
of such obligation. All payments shall be made at such
address as the Holder
shall hereafter give to the Borrower by
written notice made in accordance with
the provisions of this Note. Whenever any amount expressed to
be due by the
terms of this Note is due on any day which
is not a business day, the same
shall instead be due on the next succeeding
day which is a business day and, in
the case of any interest payment date which
is not the date on which this Note
is paid in full, the extension of the due
date thereof shall not be taken into
account for purposes of determining the
amount of interest due on such date.
As used in this Note, the term "business
day" shall mean any day other than a
Saturday, Sunday or a day on which
commercial banks in the city of New York,
New York are authorized or required by law
or executive order to remain closed.
Each capitalized term used herein, and not
otherwise defined, shall have the
meaning ascribed thereto in that certain
Securities Purchase Agreement, dated
March 17, 2005, pursuant to which this Note
was originally issued (the
"Purchase Agreement").
This Note is free from all taxes, liens,
claims and encumbrances with respect
to the issue thereof and shall not be
subject to preemptive rights or other
similar rights of shareholders of the
Borrower and will not impose personal
liability upon the holder thereof.
The obligations of the
Borrower under this
Note shall be secured by that certain
Security Agreement and Intellectual
Property Security Agreement, each dated
March 17, 2005 by and between the
Borrower and the Holder.
The following terms shall apply to this
Note:
ARTICLE I. CONVERSION RIGHTS
1.1 Conversion Right.
The Holder shall have
the right from time to time, and
at any time on or prior to the earlier of
(i) the Maturity Date and (ii) the
date of payment of the Default Amount (as
defined in Article III) pursuant to
Section 1.6(a) or Article III, the Optional
Prepayment Amount (as defined in
Section 5.1 or any payments pursuant to
Section 1.7, each in respect of the
remaining outstanding principal amount of
this Note to convert all or any part
of the outstanding and unpaid principal
amount of this Note into fully paid and
non-assessable shares of Common Stock, as
such Common Stock exists on the Issue
Date, or any shares of capital stock or
other securities of the Borrower into
which such Common Stock shall hereafter be
changed or reclassified at the
conversion price (the "Conversion Price")
determined as provided herein (a
"Conversion"); provided, however, that in
no event shall the Holder be entitled
to convert any portion of this Note in
excess of that portion of this Note upon
conversion of which the sum of (1) the
number of shares of Common Stock
beneficially owned by the Holder and its
affiliates (other than shares of
Common Stock which may be deemed
beneficially owned through the ownership of
the unconverted portion of the Notes or the
unexercised or unconverted portion
of any other security of the Borrower
(including, without limitation, the
warrants issued by the Borrower pursuant to
the Purchase Agreement) subject to
a limitation on conversion or exercise
analogous to the limitations contained
herein) and (2) the number of shares of
Common Stock issuable upon the
conversion of the portion of this Note with
respect to which the determination
of this proviso is being made, would result
in beneficial ownership by the
Holder and its affiliates of more than
4.99% of the outstanding shares of
Common Stock and provided further that the
Holder shall not be entitled to
convert any portion of this Note during any
month immediately succeeding a
Determination Date occurring during a month
in which the Borrower exercises its
prepayment option pursuant to Section 5.2
of this Note. For
purposes of the
proviso to the immediately preceding
sentence, beneficial ownership shall be
determined in accordance with Section 13(d)
of the Securities Exchange Act of
1934, as amended, and Regulations 13D-G
thereunder, except as otherwise
provided in clause (1) of such proviso.
The number of shares
of Common Stock
to be issued upon each conversion of this
Note shall be determined by dividing
the Conversion Amount (as defined below) by
the applicable Conversion Price
then in effect on the date specified in the
notice of conversion, in the form
attached hereto as Exhibit A (the "Notice
of Conversion"), delivered to the
Borrower by the Holder in accordance with
Section 1.4 below; provided that the
Notice of Conversion is submitted by
facsimile (or by other means resulting in,
or reasonably expected to result in,
notice) to the Borrower before 6:00 p.m.,
New York, New York time on such conversion
date (the "Conversion Date"). The
term "Conversion Amount" means, with
respect to any conversion of this Note,
the sum of (1) the principal amount of this
Note to be converted in such
conversion plus (2) accrued and unpaid
interest, if any, on such principal
amount at the interest rates provided in
this Note to the Conversion Date plus
(3) Default Interest, if any, on the
amounts referred to in the immediately
preceding clauses (1) and/or (2) plus (4)
at the Holder's option, any amounts
owed to the Holder pursuant to Sections 1.3
and 1.4(g) hereof or pursuant to
Section 2(c) of that certain Registration
Rights Agreement, dated as of March
17, 2005, executed in connection with the
initial issuance of this Note and the
other Notes issued on the Issue Date (the
"Registration Rights Agreement").
The term "Determination Date" means the
last business day of each month after
the Issue Date.
1.2 Conversion Price.
(a) Calculation of Conversion
Price. The Conversion
Price shall be the lesser
of (i) the Variable Conversion Price (as
defined herein) and (ii) the Fixed
Conversion Price (as defined herein)
(subject, in each case, to equitable
adjustments for stock splits, stock
dividends or rights offerings by the
Borrower relating to the Borrower's
securities or the securities of any
subsidiary of the Borrower, combinations,
recapitalization, reclassifications,
extraordinary distributions and similar
events). The "Variable
Conversion
Price" shall mean the Applicable Percentage
(as defined herein) multiplied by
the Market Price (as defined herein).
"Market Price" means
the average of the
lowest three (3) Trading Prices (as defined
below) for the Common Stock during
the twenty (20) Trading Day period ending
one Trading Day prior to the date the
Conversion Notice is sent by the Holder to
the Borrower via facsimile (the
"Conversion Date"). "Trading Price" means, for any
security as of any date,
the intraday trading price on the
Over-the-Counter Bulletin Board (the "OTCBB")
as reported by a reliable reporting service
mutually acceptable to and
hereafter designated by Holders of a
majority in interest of the Notes and the
Borrower or, if the OTCBB is not the
principal trading market for such
security, the intraday trading price of
such security on the principal
securities exchange or trading market where
such security is listed or traded
or, if no intraday trading price of such
security is available in any of the
foregoing manners, the average of the
intraday trading prices of any market
makers for such security that are listed in
the "pink sheets" by the National
Quotation Bureau, Inc. If the Trading Price cannot be
calculated for such
security on such date in the manner
provided above, the Trading Price shall be
the fair market value as mutually
determined by the Borrower and the holders of
a majority in interest of the Notes being
converted for which the calculation
of the Trading Price is required in order
to determine the Conversion Price of
such Notes. "Trading Day" shall mean any day
on which the Common Stock is
traded for any period on the OTCBB, or on
the principal securities exchange or
other securities market on which the Common
Stock is then being traded.
"Applicable Percentage" shall mean 40.0%.
The "Fixed Conversion
Price" shall
mean $.005.
(b) Conversion Price During Major
Announcements.
Notwithstanding anything
contained in Section 1.2(a) to the
contrary, in the event the Borrower (i)
makes a public announcement that it intends
to consolidate or merge with any
other corporation (other than a merger in
which the Borrower is the surviving
or continuing corporation and its capital
stock is unchanged) or sell or
transfer all or substantially all of the
assets of the Borrower or (ii) any
person, group or entity (including the
Borrower) publicly announces a tender
offer to purchase 50% or more of the
Borrower's Common Stock (or any other
takeover scheme) (the date of the
announcement referred to in clause (i) or
(ii) is hereinafter referred to as the
"Announcement Date"),
then the
Conversion Price shall, effective upon the
Announcement Date and continuing
through the Adjusted Conversion Price
Termination Date (as defined below), be
equal to the lower of (x) the Conversion
Price which would have been applicable
for a Conversion occurring on the
Announcement Date and (y) the Conversion
Price that would otherwise be in effect.
From and after the Adjusted Conversion
Price Termination Date, the Conversion
Price shall be determined as set forth
in this Section 1.2(a). For purposes hereof, "Adjusted Conversion Price
Termination Date" shall mean, with respect
to any proposed transaction or
tender offer (or takeover scheme) for which
a public announcement as
contemplated by this Section 1.2(b) has
been made, the date upon which the
Borrower (in the case of clause (i) above)
or the person, group or entity (in
the case of clause (ii) above) consummates
or publicly announces the
termination or abandonment of the proposed
transaction or tender offer (or
takeover scheme) which caused this Section
1.2(b) to become operative.
1.3 Authorized Shares. Subject to the Stockholder
Approval (as defined in the
Agreement), the Borrower covenants that
during the period the conversion right
exists, the Borrower will reserve from its
authorized and unissued Common Stock
a sufficient number of shares, free from
preemptive rights, to provide for the
issuance of Common Stock upon the full
conversion of this Note and the other
Notes issued pursuant to the Purchase
Agreement. The
Borrower is required at
all times to have authorized and reserved
two times the number of shares that
is actually issuable upon full conversion
of the Notes (based on the Conversion
Price of the Notes or the Exercise Price of
the Warrants in effect from time to
time) (the "Reserved Amount"). The Reserved Amount shall be
increased from
time to time in accordance with the
Borrower's obligations pursuant to Section
4(h) of the Purchase Agreement.
The Borrower
represents that upon issuance,
such shares will be duly and validly
issued, fully paid and non-assessable. In
addition, if the Borrower shall issue any
securities or make any change to its
capital structure which would change the
number of shares of Common Stock into
which the Notes shall be convertible at the
then current Conversion Price, the
Borrower shall at the same time make proper
provision so that thereafter there
shall be a sufficient number of shares of
Common Stock authorized and reserved,
free from preemptive rights, for conversion
of the outstanding Notes. The
Borrower (i) acknowledges that it has
irrevocably instructed its transfer agent
to issue certificates for the Common Stock
issuable upon conversion of this
Note, and (ii) agrees that its issuance of
this Note shall constitute full
authority to its officers and agents who
are charged with the duty of executing
stock certificates to execute and issue the
necessary certificates for shares
of Common Stock in accordance with the
terms and conditions of this Note.
If, at any time a Holder of this Note
submits a Notice of Conversion, and the
Borrower does not have sufficient
authorized but unissued shares of Common
Stock available to effect such conversion
in accordance with the provisions of
this Article I (a "Conversion Default"),
subject to Section 4.8, the Borrower
shall issue to the Holder all of the shares
of Common Stock which are then
available to effect such conversion.
The portion of this
Note which the Holder
included in its Conversion Notice and which
exceeds the amount which is then
convertible into available shares of Common
Stock (the "Excess Amount") shall,
notwithstanding anything to the contrary
contained herein, not be convertible
into Common Stock in accordance with the
terms hereof until (and at the
Holder's option at any time after) the date
additional shares of Common Stock
are authorized by the Borrower to permit
such conversion, at which time the
Conversion Price in respect thereof shall
be the lesser of (i) the Conversion
Price on the Conversion Default Date (as
defined below) and (ii) the Conversion
Price on the Conversion Date thereafter
elected by the Holder in respect
thereof. In addition, the Borrower shall
pay to the Holder payments
("Conversion Default Payments") for a
Conversion Default in the amount of (x)
the sum of (1) the then outstanding
principal amount of this Note plus (2)
accrued and unpaid interest on the unpaid
principal amount of this Note through
the Authorization Date (as defined below)
plus (3) Default Interest, if any, on
the amounts referred to in clauses (1)
and/or (2), multiplied by (y) .24,
multiplied by (z) (N/365), where N = the
number of days from the day the holder
submits a Notice of Conversion giving rise
to a Conversion Default (the
"Conversion Default Date") to the date (the
"Authorization Date") that the
Borrower authorizes a sufficient number of
shares of Common Stock to effect
conversion of the full outstanding
principal balance of this Note. The
Borrower shall use its best efforts to
authorize a sufficient number of shares
of Common Stock as soon as practicable
following the earlier of (i) such time
that the Holder notifies the Borrower or
that the Borrower otherwise becomes
aware that there are or likely will be
insufficient authorized and unissued
shares to allow full conversion thereof and
(ii) a Conversion Default. The
Borrower shall send notice to the Holder of
the authorization of additional
shares of Common Stock, the Authorization
Date and the amount of Holder's
accrued Conversion Default Payments.
The accrued Conversion
Default Payments
for each calendar month shall be paid in
cash or shall be convertible into
Common Stock (at such time as there are
sufficient authorized shares of Common
Stock) at the applicable Conversion Price,
at the Borrower's option, as
follows:
(a) In the event Borrower elects to make
such payment in cash, cash payment
shall be made to Holder by the fifth (5th)
day of the month following the month
in which it has accrued; and
(b) In the event Borrower elects to make
such payment in Common Stock, the
Borrower shall convert such payment amount
into Common Stock at the Conversion
Price (as in effect at the time of
conversion) at any time after the fifth
(5th) day of the month following the month
in which it has accrued in
accordance with the terms of this Article I
(so long as there is then a
sufficient number of authorized shares of
Common Stock).
The Borrower's election shall be made in
writing to the Holder at any time
prior to 6:00 p.m., New York, New York
time, on the third day of the month
following the month in which Conversion
Default payments have accrued. If no
election is made, the Borrower shall be
deemed to have elected to pay in cash.
Nothing herein shall limit the Holder's
right to pursue actual damages (to the
extent in excess of the Conversion Default
Payments) for the Borrower's failure
to maintain a sufficient number of
authorized shares of Common Stock, and each
holder shall have the right to pursue all
remedies available at law or in
equity (including degree of specific
performance and/or injunctive relief).
1.4 Method of Conversion.
(a) Mechanics of Conversion. Subject to Section 1.1, this Note
may be
converted by the Holder in whole or in part
at any time from time to time after
the Issue Date, by (A) submitting to the
Borrower a Notice of Conversion (by
facsimile or other reasonable means of
communication dispatched on the
Conversion Date prior to 6:00 p.m., New
York, New York time) and (B) subject to
Section 1.4(b), surrendering this Note at
the principal office of the Borrower.
(b) Surrender of Note Upon Conversion.
Notwithstanding
anything to the
contrary set forth herein, upon conversion
of this Note in accordance with the
terms hereof, the Holder shall not be
required to physically surrender this
Note to the Borrower unless the entire
unpaid principal amount of this Note is
so converted. The Holder and the Borrower shall
maintain records showing the
principal amount so converted and the dates
of such conversions or shall use
such other method, reasonably satisfactory
to the Holder and the Borrower, so
as not to require physical surrender of
this Note upon each such conversion.
In the event of any dispute or discrepancy,
such records of the Borrower shall
be controlling and determinative in the
absence of manifest error.
Notwithstanding the foregoing, if any
portion of this Note is converted as
aforesaid, the Holder may not transfer this
Note unless the Holder first
physically surrenders this Note to the
Borrower, whereupon the Borrower will
forthwith issue and deliver upon the order
of the Holder a new Note of like
tenor, registered as the Holder (upon
payment by the Holder of any applicable
transfer taxes) may request, representing
in the aggregate the remaining unpaid
principal amount of this Note. The Holder and any assignee, by
acceptance of
this Note, acknowledge and agree that, by
reason of the provisions of this
paragraph, following conversion of a
portion of this Note, the unpaid and
unconverted principal amount of this Note
represented by this Note may be less
than the amount stated on the face
hereof.
(c) Payment of Taxes. The Borrower shall not be required
to pay any tax which
may be payable in respect of any transfer
involved in the issue and delivery of
shares of Common Stock or other securities
or property on conversion of this
Note in a name other than that of the
Holder (or in street name), and the
Borrower shall not be required to issue or
deliver any such shares or other
securities or property unless and until the
person or persons (other than the
Holder or the custodian in whose street
name such shares are to be held for the
Holder's account) requesting the issuance
thereof shall have paid to the
Borrower the amount of any such tax or
shall have established to the
satisfaction of the Borrower that such tax
has been paid.
(d) Delivery of Common Stock Upon
Conversion. Upon
receipt by the Borrower
from the Holder of a facsimile transmission
(or other reasonable means of
communication) of a Notice of Conversion
meeting the requirements for
conversion as provided in this Section 1.4,
the Borrower shall issue and
deliver or cause to be issued and delivered
to or upon the order of the Holder
certificates for the Common Stock issuable
upon such conversion within two (2)
business days after such receipt (and,
solely in the case of conversion of the
entire unpaid principal amount hereof,
surrender of this Note) (such second
business day being hereinafter referred to
as the "Deadline") in accordance
with the terms hereof and the Purchase
Agreement (including, without
limitation, in accordance with the
requirements of Section 2(g) of the Purchase
Agreement that certificates for shares of
Common Stock issued on or after the
effective date of the Registration
Statement upon conversion of this Note shall
not bear any restrictive legend).
(e) Obligation of Borrower to Deliver
Common Stock. Upon
receipt by the
Borrower of a Notice of Conversion, the
Holder shall be deemed to be the holder
of record of the Common Stock issuable upon
such conversion, the outstanding
principal amount and the amount of accrued
and unpaid interest on this Note
shall be reduced to reflect such
conversion, and, unless the Borrower defaults
on its obligations under this Article I,
all rights with respect to the portion
of this Note being so converted shall
forthwith terminate except the right to
receive the Common Stock or other
securities, cash or other assets, as herein
provided, on such conversion. If the Holder shall have given a
Notice of
Conversion as provided herein, the
Borrower's obligation to issue and deliver
the certificates for Common Stock shall be
absolute and unconditional,
irrespective of the absence of any action
by the Holder to enforce the same,
any waiver or consent with respect to any
provision thereof, the recovery of
any judgment against any person or any
action to enforce the same, any failure
or delay in the enforcement of any other
obligation of the Borrower to the
holder of record, or any setoff,
counterclaim, recoupment, limitation or
termination, or any breach or alleged
breach by the Holder of any obligation to
the Borrower, and irrespective of any other
circumstance which might otherwise
limit such obligation of the Borrower to
the Holder in connection with such
conversion. The Conversion Date specified in
the Notice of Conversion shall be
the Conversion Date so long as the Notice
of Conversion is received by the
Borrower before 6:00 p.m., New York, New
York time, on such date.
(f) Delivery of Common Stock by Electronic
Transfer. In lieu of
delivering
physical certificates representing the
Common Stock issuable upon conversion,
provided the Borrower's transfer agent is
participating in the Depository Trust
Company ("DTC") Fast Automated Securities
Transfer ("FAST") program, upon
request of the Holder and its compliance
with the provisions contained in
Section 1.1 and in this Section 1.4, the
Borrower shall use its best efforts to
cause its transfer agent to electronically
transmit the Common Stock issuable
upon conversion to the Holder by crediting
the account of Holder's Prime Broker
with DTC through its Deposit Withdrawal
Agent Commission ("DWAC") system.
(g) Failure to Deliver Common Stock Prior
to Deadline. Without
in any way
limiting the Holder's right to pursue other
remedies, including actual damages
and/or equitable relief, the parties agree
that if delivery of the Common Stock
issuable upon conversion of this Note is
more than three (3) days after the
Deadline (other than a failure due to the
circumstances described in Section
1.3 above, which failure shall be governed
by such Section) the Borrower shall
pay to the Holder $2,000 per day in cash,
for each day beyond the Deadline that
the Borrower fails to deliver such Common
Stock. Such cash
amount shall be
paid to Holder by the fifth day of the
month following the month in which it
has accrued or, at the option of the Holder
(by written notice to the Borrower
by the first day of the month following the
month in which it has accrued),
shall be added to the principal amount of
this Note, in which event interest
shall accrue thereon in accordance with the
terms of this Note and such
additional principal amount shall be
convertible into Common Stock in
accordance with the terms of this Note.
1.5 Concerning the Shares. The shares of Common Stock
issuable upon conversion
of this Note may not be sold or transferred
unless (i) such shares
are sold
pursuant to an effective registration
statement under the Act or (ii) the
Borrower or its transfer agent shall have
been furnished with an opinion of
counsel (which opinion shall be in form,
substance and scope customary for
opinions of counsel in comparable
transactions) to the effect that the shares
to be sold or transferred may be sold or
transferred pursuant to an exemption
from such registration or (iii) such shares
are sold or transferred pursuant to
Rule 144 under the Act (or a successor
rule) ("Rule 144") or (iv) such shares
are transferred to an "affiliate" (as
defined in Rule 144) of the Borrower who
agrees to sell or otherwise transfer the
shares only in accordance with this
Section 1.5 and who is an Accredited
Investor (as defined in the Purchase
Agreement). Except as otherwise provided in
the Purchase Agreement (and
subject to the removal provisions set forth
below), until such time as the
shares of Common Stock issuable upon
conversion of this Note have been
registered under the Act as contemplated by
the Registration Rights Agreement
or otherwise may be sold pursuant to Rule
144 without any restriction as to the
number of securities as of a particular
date that can then be immediately sold,
each certificate for shares of Common Stock
issuable upon conversion of this
Note that has not been so included in an
effective registration statement or
that has not been sold pursuant to an
effective registration statement or an
exemption that permits removal of the
legend, shall bear a legend substantially
in the following form, as appropriate:
"THE SECURITIES REPRESENTED BY THIS
CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933, AS AMENDED.
THE SECURITIES MAY NOT
BE SOLD,
TRANSFERRED OR ASSIGNED IN THE ABSENCE OF
AN EFFECTIVE REGISTRATION STATEMENT
FOR THE SECURITIES UNDER SAID ACT, OR AN
OPINION OF COUNSEL IN FORM, SUBSTANCE
AND SCOPE CUSTOMARY FOR OPINIONS OF COUNSEL
IN COMPARABLE TRANSACTIONS, THAT
REGISTRATION IS NOT REQUIRED UNDER SAID ACT
UNLESS SOLD PURSUANT TO RULE 144 OR
REGULATION S UNDER SAID ACT."
The legend set forth above shall be removed
and the Borrower shall issue to the
Holder a new certificate therefor free of
any transfer legend if (i) the
Borrower or its transfer agent shall have
received an opinion of counsel, in
form, substance and scope customary for
opinions of counsel in comparable
transactions, to the effect that a public
sale or transfer of such Common Stock
may be made without registration under the
Act and the shares are so sold or
transferred, (ii) such Holder provides the
Borrower or its transfer agent with
reasonable assurances that the Common Stock
issuable upon conversion of this
Note (to the extent such securities are
deemed to have been acquired on the
same date) can be sold pursuant to Rule 144
or (iii) in the case of the Common
Stock issuable upon conversion of this
Note, such security is registered for
sale by the Holder under an effective
registration statement filed under the
Act or otherwise may be sold pursuant to
Rule 144 without any restriction as to
the number of securities as of a particular
date that can then be immediately
sold. Nothing in this Note shall (i)
limit the Borrower's obligation under the
Registration Rights Agreement or (ii)
affect in any way the Holder's
obligations to comply with applicable
prospectus delivery requirements upon the
resale o
