CALLABLE SECURED CONVERTIBLE NOTE

 

                                                                    EXHIBIT 10.5

                                                                    ------------

 

 

 

         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

 

New York, New York

November 14, 2005                                                         $15,000

 

                  FOR VALUE   RECEIVED,   ADVANCED   BIOPHOTONICS   INC., a Delaware

corporation   (hereinafter called the "BORROWER"),   hereby promises to pay to the

order of NEW   MILLENNIUM   CAPITAL   PARTNERS II, LLC or   registered   assigns (the

"HOLDER") the sum of $15,000, on November 14, 2008 (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 November 14, 2005 (the "ISSUE DATE")

until the same becomes due and payable, whether at maturity or upon acceleration

or by prepayment or otherwise.   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)

is greater than $.2875 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,   $.001 par value per share (the "COMMON   STOCK") in   accordance   with the

terms hereof) shall be made in lawful money of the United States of America. 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 November 14, 2005, pursuant to

which this Note was originally issued (the "PURCHASE AGREEMENT").

 

                                      

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         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 November 14, 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 on 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, provided, however, that the Company shall have the right to pay

any or all   interest in cash 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   November   14,   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.

 

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     1.2 CONVERSION PRICE.

 

               (A) CALCULATION OF CONVERSION   PRICE.   The Conversion Price shall

be the Variable 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   ("REPORTING    SERVICE")   mutually

acceptable   to   Borrower   and Holder 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 60.0%.

 

               (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.

 

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     1.3 AUTHORIZED   SHARES.   Subject to   Stockholder   Approval (as such term is

defined in Section   4(n) of the   Securities   Purchase   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:

 

                                       4

<PAGE>

 

               (A) In the event Holder elects to take 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   Holder   elects to take such   payment   in Common

Stock,   the Holder may 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 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 Holder's   election shall be made in writing to the Borrower 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 Holder shall be deemed to have   elected to receive   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.

 

 

                                       5

<PAGE>

 

               (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 three (3)

business days after such receipt   (and,   solely in the case of conversion of the

entire   unpaid   principal   amount   hereof,   surrender   of this Note) (such third

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.

 

 

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               (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 two (2) business

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:

 

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<PAGE>

 

         "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 of

the securities referred to herein.

 

                                       8

<PAGE>

 

     1.6 EFFECT OF CERTAIN EVENTS.

 

               (A) EFFECT OF MERGER,   CONSOLIDATION,   ETC.   At the option of the

Holder,   the sale,   conveyance or disposition of all or substantially all of the

assets of the Borrower,   the   effectuation   by the Borrower of a transaction   or

series of related transactions in which more than 50% of the voting power of the

Borrower   is