ZAZA ZaZa Energy Corporation (CE)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the

Securities Exchange Act of 1934

Date of Report (Date of earliest event reported): January 19, 2015

ZAZA ENERGY CORPORATION

(Exact name of registrant as specified in its charter)

(713) 595-1900

(Registrant’s telephone number, including area code)

NOT APPLICABLE

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

o            Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

o            Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

o            Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

o            Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Item 1.01 Entry into a Material Definitive Agreement.

As previously disclosed, on February 24, 2014, ZaZa Energy Corporation (the “Company”) entered into Exchange Agreements (the “Exchange Agreements”) with the founders of the Company and entities controlled by them (collectively, the “Subordinated Note Holders”) to exchange an aggregate of $47.3 million in 8.00% Subordinated Notes due 2017 (the “Subordinated Notes”) for a combination of shares of common stock of the Company and shares of a new series of preferred stock of the Company.

Effective as of January 19, 2015, the Company entered into Subordinated Note Modification Agreements with each of the Subordinated Note Holders (the “Modification Agreements”) that amended and superseded the Exchange Agreements.  The Modification Agreements provide that, instead of exchanging the Subordinated Notes for common stock and preferred stock of the Company, the Subordinated Note Holders have agreed to accept payment-in-kind interest.  These changes will occur immediately and, unlike the Exchange Agreements, are not subject to the refinancing of the Senior Secured Notes (as defined below).

Simultaneously with the execution of the Modification Agreements, each Subordinated Note Holder surrendered his or its Subordinated Note effective as of January 19, 2015 in exchange for a replacement subordinated note (each, a “First Amended and Restated Subordinated Note”).  The First Amended and Restated Subordinated Notes provide that interest payments will be paid in kind as additional principal beginning with the first interest payment due with respect to interest that accrues beginning January 1, 2015, and the payment-in-kind interest will continue as long as those notes remain outstanding.  Interest will continue to accrue at a rate of 8.00% per annum, and the maturity date will remain August 21, 2017.

Under the terms of the Company’s 10.00% Senior Secured Notes due 2017 (the “Senior Secured Notes”), the holders of the Senior Secured Notes may require the Company to repurchase up to 100% of the Senior Secured Notes at par plus accrued and unpaid interest.  Holders of Senior Secured Notes can exercise the put beginning on February 21, 2015, and the Company would have up to 60 days after receiving notice of any put exercises in order to repurchase the Senior Secured Notes.  Accordingly, the Company has been attempting to either refinance the Senior Secured Notes or to amend the terms of the Senior Secured Notes to delay the date on which the put right becomes exercisable.  In order to facilitate the refinancing of the Senior Secured Notes, the Subordinated Note Holders have also agreed in the Modification Agreements to negotiate in good faith any inter-creditor agreement that may be requested by any senior lender in connection with the refinancing of the Senior Secured Notes or a deferral of the put right.  Also, the First Amended and Restated Subordinated Note establishes as an event of default thereunder any acceleration of the indebtedness associated with the Senior Secured Notes or other senior indebtedness.

The First Amended and Restated Subordinated Notes also eliminated the Company’s obligation to use 20% of the proceeds from equity financing after February 21, 2015, or 20% of the proceeds from subordinated debt financing at any time, to prepay a portion of the Subordinated Notes.  The Subordination Agreement currently overrides that requirement, but the Modification Agreements makes it clear that the Company will not be subject to that requirement if the Senior Secured Notes are repaid in full.

The foregoing descriptions of the Modification Agreements and the First Amended and Restated Subordinated Notes do not purport to be complete and are subject to, and qualified in their entirety by, the full text of the form of Modification Agreement and the form of First Amended and Restated Subordinated Note, which are attached as Exhibits 4.1 and 10.1 to this Current Report on Form 8-K and are incorporated herein by reference.

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant

The information provided in Item 1.01 of this Current Report is incorporated into this Item 2.03 by reference.

Item 9.01 Financial Statements and Exhibits

* Pursuant to Instruction 2 of Item 601(a) of Regulation S-K, the Company has filed only the form of the agreement as the other agreements are substantially identical in all material respects except as to the parties thereto and certain other details, which are described in a schedule to the exhibit.

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SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

Dated: January 23, 2015

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EXHIBIT INDEX

* Pursuant to Instruction 2 of Item 601(a) of Regulation S-K, the Company has filed only the form of the agreement as the other agreements are substantially identical in all material respects except as to the parties thereto and certain other details, which are described in a schedule to the exhibit.

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Exhibit 4.1

FORM OF

FIRST AMENDED AND RESTATED PROMISSORY NOTE

ZaZa Energy Corporation, a Delaware corporation (“Maker”), hereby promises to pay to [                ] (“Payee”), on August 21, 2017 (the “Maturity Date”), in lawful money of the United States of America, the principal amount of [                  ] ($                ), plus any increase in the principal amount outstanding as a result of payments of PIK Interest (as defined below), and to pay any interest payable in cash on the outstanding principal balance, from the date hereof until payment of the principal amount in full or in part without premium or penalty on the Maturity Date (or any extension thereof), pursuant to the terms and conditions set forth in this non-negotiable, non-transferable promissory note (this “Note”).

This Note is issued pursuant to the Subordinated Note Modification Agreement by and among Maker, Payee and [Name of affiliated Note Holder of Payee], dated as of January 19, 2015 (the “Modification Agreement”).  Capitalized terms used but not defined herein shall have the respective meanings set forth in the Modification Agreement.

In accordance with the Modification Agreement, this Note is an amendment and restatement in its entirety of that certain promissory note of Maker, in an original principal amount equal to the original principal amount hereof, dated February 21, 2012, payable to Payee (the “Original Note”).  This Note supersedes the Original Note in all respects.

For all purposes hereof, references to “principal amount” refers to (x) the principal face amount of this Note, plus (y) any increase in the principal amount outstanding as a result of deferred payments of PIK Interest, minus (z) the aggregate amount of cash principal payments made to Payee.  This Note shall bear interest at the rate of 8% per annum and be payable as follows: for interest payment periods based on the principal balances on or prior to December 31, 2014, interest payments shall be paid solely in cash on the last day of each month; thereafter through the Maturity Date, interest payments shall be paid solely in kind in the form of an additional principal amount of Note (“PIK Interest”) at the per annum rate of 8% on the principal amount outstanding on the last day of each month.

If the obligation of Maker to pay any principal or interest on this Note becomes due on a Saturday, Sunday or day on which banks in New York State are permitted or required to be closed, then such due date shall be extended to the next succeeding day that is not a Saturday, Sunday or a day on which banks in New York State are permitted or required to be closed. All payments of principal and interest payable in cash due hereunder shall be paid in lawful money of the United States of America by wire transfer at the account specified by Payee.

The Maker may prepay all or a portion of the principal amount hereof, in whole or in part at any time, and to repay any interest accrued on the principal amount hereof at any time and from time to time, in each case, without premium or penalty.

Payee represents that it is acquiring this Note for investment and not with a view to the sale or distribution thereof. Maker represents, warrants and covenants that (i) the issuance and

delivery of this Note has been duly and validly authorized and (ii) this Note is a valid and legally binding obligation of the Maker, enforceable in accordance with its terms, except as enforceability may be limited by bankruptcy and similar laws affecting creditors’ rights generally and that the granting of specific performance lies at the discretion of a court in equity.

This Note evidences non-negotiable and non-transferable indebtedness of the Maker.

If an Event of Default (as defined below) under this Note shall occur and be continuing, then the Payee shall have the right to declare the entire principal balance and all accrued interest under this Note due and payable. An “Event of Default” shall occur hereunder upon the occurrence of any one or more of the following events with respect to Maker: (i) if Maker shall fail to make any payment of principal or interest on this Note required hereby when due; (ii) if, pursuant to or within the meaning of the United States Bankruptcy Code or any other federal or state law relating to insolvency or relief of debtors (a “Bankruptcy Law”), Maker shall (1) commence a voluntary case or proceeding; (2) consent to the entry of an order for relief against it in an involuntary case; (3) consent to the appointment of a trustee, receiver, assignee, liquidator or similar official; (4) make an assignment for the benefit of its creditors; or (5) admit in writing its inability to pay its debts as they become due; provided, however, that the failure to pay, in whole or in part, any amounts due as a result of the 2015 Put Right shall not constitute an Event of Default; or (iii) if a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that (1) is for relief against Maker in an involuntary case; (2) appoints a trustee, receiver, assignee, liquidator or similar official for Maker or substantially all of Maker’s properties; or (3) orders the liquidation of Maker, and in each case the order or decree is not dismissed within 30 days or (6) subject to the Subordination Agreement, an acceleration of any Senior Indebtedness by the applicable noteholders , lenders or trustee, as the case may be, in accordance with the terms of thereof, which acceleration is not withdrawn in accordance with such terms.

All notices in respect of this Note shall be given by hand delivery, by a recognized overnight courier service, or by registered or certified United States mail, return receipt requested, to Maker or Payee and their respective agents at their addresses set forth in the Subordination Agreement. Any notice is deemed to have been given two business days after delivery to the courier service or five days after deposited in the U.S. mail, as the case may be.

This Note is not transferable or assignable by its holder without the prior written consent of the Maker.

Maker covenants and agrees, and Payee by its acceptance of this Note likewise covenants and agrees, that this Note is subordinated pursuant to the Subordination Agreement (as defined in the Modification Agreement). In addition, Maker covenants and agrees, and Payee by its acceptance of this Note likewise covenants and agrees, that the payment of the principal of this Note is subordinated, to the extent and in the manner provided herein, to the prior payment in full of all other Senior Indebtedness (as hereinafter defined) and that the subordination is for the benefit of the lenders under such Senior Indebtedness (the “Lenders”). Maker, and Payee by its acceptance of this Note likewise, hereby (i) authorizes each Lender to demand specific performance of the terms hereof, whether or not Maker shall have complied with any of the provisions hereof applicable to it, at any time when Maker shall have failed to comply with any provisions hereof which are applicable to it, and (ii) irrevocably waives any defense based on the adequacy of a remedy at law, which might be asserted as a bar to such remedy of specific

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performance. Upon any payment of any amounts hereunder by Maker to Payee, or upon any distribution of assets of Maker in any dissolution, winding up, liquidation or reorganization (whether in bankruptcy, insolvency or receivership proceedings or upon an assignment for the benefit of creditors or otherwise):

(i)                                     The Lenders shall first be entitled to receive payment in full in cash of the Senior Indebtedness before Payee is entitled to receive any payment on account of any obligations evidenced hereby; provided that so long as no Default or Event of Default (as such terms are defined in the definitive agreements governing any Senior Indebtedness) shall have occurred and continue under any definitive agreement governing any Senior Indebtedness, Maker may pay to Payee and Payee may receive for itself and not for the benefit of the Lenders regularly scheduled payments of interest hereunder;

(ii)                                  Any payment or distribution of assets of Maker of any kind or character, whether in cash, property or securities, to which Payee would be entitled except for the provisions hereof, shall be paid by the liquidating trustee or agent or other Person making such payment or distribution directly to the Lenders, to the extent necessary to make payment in full of all Senior Indebtedness remaining unpaid after giving effect to any concurrent payment or distribution or provisions therefor to the Lenders; and

(iii)                               In the event that notwithstanding the provisions hereof, any payment or distribution of assets of Maker of any kind or character (other than regularly scheduled interest), whether in cash, property or securities, shall be received by Payee on account of this Note before all Senior Indebtedness is paid in full, such payment or distribution shall be received and held in trust for and shall be paid over to the Lenders for application to the payment of the Senior Indebtedness until all of the Senior Indebtedness shall have been paid in full in cash, after giving effect to any concurrent payment or distribution or provision therefor to the Lenders.

No right of any Lender or any other present or future holders of any Senior Indebtedness to enforce the subordination provisions herein shall at any time in any way be prejudiced or impaired by any act or failure to act on the part of Maker or Payee or by any act or failure to act, in good faith, by any Lender, or by any noncompliance by Maker or Payee with the terms of this Note, regardless of any knowledge thereof which any Lender may have or be otherwise charged with; and such indebtedness of Maker to the Payee, if any Lender, after a Default or Event of Default (as such terms are defined in the definitive agreements governing any Senior Indebtedness) has occurred, so requests, shall be collected, enforced and received by Payee as trustee for the Lenders and be paid over to the Lenders on account of Senior Indebtedness, but without affecting or impairing in any manner the liability of Maker under the provisions of this Note.

As used herein, “Senior Indebtedness” means any obligation of Maker to any unaffiliated third party for borrowed money which, by its express terms, is senior to the obligations of Maker under this Note (but excluding the Senior Debt (as defined in the Subordination Agreement), and all obligations and liabilities (including all principal and any interest accruing on the foregoing), fees, charges and collection expenses in connection therewith; provided, however, that in no

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event shall the principal amount of the Senior Indebtedness exceed $150,000,000 less the aggregate outstanding principal amount of the Senior Debt.

This Note shall be governed by and construed in accordance with the laws and the State of New York, and the terms hereof may only be changed by written agreement duly executed by Maker and Payee.

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IN WITNESS WHEREOF, the Maker has caused this Note to be executed and delivered as of the date first above written.

Schedule of Substantially Identical Agreements

Pursuant to Instruction 2 of Item 601(a) of Regulation S-K, the Company has filed only the form of the First Amended and Restated Promissory Note although the Company has entered into six such agreements that are substantially identical in all material respects.  Differences in certain details among such other agreements entered into by the Company are noted in the chart below:

Exhibit 10.1

FORM OF SUBORDINATED NOTE MODIFICATION AGREEMENT

This SUBORDINATED NOTE MODIFICATION AGREEMENT (“Agreement”) is made and entered into as of this 19th day of January, 2015 (the “Effective Date”), by and among                          (“Founder”),                                   (“Founder Holdco” and, together with Founder, the “Note Holders”) and ZaZa Energy Corporation (“ZaZa” or the “Company”).  The Note Holders and the Company are sometimes collectively referred to in this Agreement as the “Parties,” and each of them is sometimes individually referred to as a “Party.”

W I T N E S S E T H

WHEREAS, Founder owns a subordinated note issued by the Company dated February 21, 2012 in the original principal amount of $                                           (the “Original Founder Note”), and the entire original principal amount of such note remains outstanding on the date hereof;

WHEREAS, Founder Holdco owns a subordinated note issued by the Company dated February 21, 2012 in the original principal amount of $12,750,000 (the “Founder Holdco Note” and, together with the Founder Note, the “Founder Notes”), and entire original principal amount of such note remains outstanding on the date hereof;

WHEREAS, the Founder Notes are subordinate to the Company’s “Senior Indebtedness” (as defined in the Founder Notes) in accordance with the subordination provisions set forth in the Founder Notes;

WHEREAS, the Company’s 8.00% Senior Secured Notes due 2017 (the “Senior Secured Notes”) are “Senior Debt” within the meaning of the Founder Notes;

WHEREAS, the Founder Notes are also subordinate to the Senior Secured Notes in accordance with the provisions of that certain Amended and Restated Subordination Agreement dated as of June 8, 2012 (the “Subordination Agreement”);

WHEREAS, under the terms of the Senior Secured Notes, the holders of the Senior Secured Notes are permitted to require the Company to repurchase up to 100% of the outstanding principal amount of the Senior Secured Notes, at par, plus accrued and unpaid interest (the “2015 Put Right”);

WHEREAS, effective as of February 24, 2014, the Company and the Note Holders entered into that certain Exchange Agreement (the “Original Exchange Agreement”) pursuant to which the Note Holders agreed, on the terms and subject to the conditions set forth in such agreement, to exchange the Subordinated Founder Notes into a combination of shares of common stock of the Company (“Common Stock”) and shares of preferred stock of the Company (“Preferred Stock”) for the business purpose of improving the Company’s balance sheet and facilitating the financing of the 2015 Put Right by utilizing a public offering of a substantially similar series of Preferred Stock;

WHEREAS, in light of the 2015 Put Right, the Company has been attempting, and is still attempting, to refinance the Senior Secured Notes with a new senior lending group and has

also been holding discussions with certain holders of the Senior Secured Notes to modify the 2015 Put Right;

WHEREAS, there can be no assurance that these refinancing or modification efforts will be completed prior to the exercise of the 2015 Put Right;

WHEREAS, the conditions to the consummation of the Original Exchange Agreement have not yet been satisfied, the Company and the Note Holders desire to amend and restate the Agreement so that the Note Holders will no longer receive shares of Common Stock or preferred stock upon the exchange of their Founder Notes, but will instead amend and restate their Founder Notes in order to, among other things, (i) provide greater flexibility to the Company and the Note Holders in their attempt to secure substitute senior financing, (ii) remove the mandatory prepayment provision relating to future debt and equity financings and (iii) provide for deferred payment of interest in kind in certain circumstances, in each case on the terms and subject to the conditions set forth in this Agreement (the “Subordinated Founder Note Amendment”);

WHEREAS, Founder owns a significant equity interest in the Company and is a director of the Company;

WHEREAS, on November 7, 2013, the Board of Directors of the Company established a Conflicts Committee (the “Conflicts Committee”) for the purposes of negotiating the terms of exchange of the Original Subordinated Notes by the Note Holders, as well as similar subordinated notes owned by [Names of other holders of Subordinated Notes];

WHEREAS, the Conflicts Committee has unanimously recommended to the Board of Directors that the Board approve the execution of this Agreement and the consummation of the transactions contemplated by this Agreement; and

WHEREAS, the Board of Directors has unanimously approved the execution of this Agreement and, subject to the conditions set forth herein, the consummation of the transactions contemplated by this Agreement.

AGREEMENTS

NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1.                                      First Amendment and Restatement of the Founder Notes.

(a)                                 Contemporaneously with the execution hereof, and against the delivery made by each Note Holder pursuant to Section 1(b) below, the Company has executed and delivered to each Note Holder an amended and restated subordinated note, substantially in the form attached hereto as Exhibit A, payable to such Note Holder and in an original principal amount equal to the original principal amount of such Note Holder’s Founder Note (each, a “First Amended and Restated Subordinated Founder Note”), which delivery has been made free and clear of any liens or security interests.

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(b)                                 Contemporaneously with the execution hereof, and against the delivery made by the Company pursuant to Section 1(a) above, each Note Holder (i) hereby accepts the First Amended and Restated Subordinated Founder Note delivered to such Note Holder and (ii) has returned, marked “Cancelled,” such Note Holder’s original Founder Note to the Company.

(c)                                  Each Note Holder hereby acknowledges and agrees that any security interest granted for the benefit such Note Holder to secure the repayment of the Subordinated Founder Notes is hereby automatically released, and each such Note Holder hereby irrevocably designates the Company as its attorney-in-fact for the purpose of executing and filing any UCC-3 termination statements in connection with such release.

(d)                                 Each Note Holder further hereby acknowledges and agrees that such Note Holder’s First Amended and Restated Subordinated Founder Note is subject to the provisions of the Subordination Agreement.  Furthermore, each Note Holder agrees to negotiate in good faith any intercreditor agreement requested by the primary senior lender providing funds to effect the refinancing of the Senior Secured Notes or, if applicable, the extension of the 2015 Put Right.

2.                                      Representations and Warranties of the Company.  In connection with the transactions provided for herein, the Company hereby represents and warrants to the Note Holders as follows:

(a)                                 Due Incorporation and Organization.  The Company has been duly incorporated, is validly existing, and is in good standing under the laws of the State of Delaware, and has all requisite corporate power and authority to carry on its business as now conducted and as proposed to be conducted.

(b)                                 Authorization. All corporate action has been taken on the part of the Company necessary for the authorization, execution, delivery and performance of this Agreement.

(c)                                  Compliance with Other Instruments.  Neither the authorization, execution and delivery of this Agreement nor any of the documents or instruments contemplated to be delivered hereby, will constitute or result in a material default or violation of any law or regulation applicable to the Company or any subsidiary of the Company or any term or provision of the organizational documents of the Company or any subsidiary of the Company, or any material agreement or instrument by which the Company or any subsidiary of the Company is bound or to which any of their respective properties or assets are subject.

3.                                      Representations and Warranties of the Note Holders.  In connection with the transactions provided for herein, the Note Holders hereby represent and warrant to the Company as follows:

(a)                                 Authorization.  This Agreement constitutes the Note Holders’ valid and legally binding obligation, enforceable in accordance with its terms, except as may be limited by (i) applicable bankruptcy, insolvency, reorganization, or similar laws relating to or affecting the enforcement of creditors’ rights and (ii) laws relating to the availability of specific performance, injunctive relief or other equitable remedies.  Founder represents that he has full capacity to enter

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into this Agreement.  Founder Holdco has been duly incorporated or formed, is validly existing, and is in good standing under the laws of the State of Texas, and has all requisite corporate or company power and authority to carry on its business as now conducted and as proposed to be conducted.  Founder Holdco represents that all corporate or company action has been taken on the part of the Founder Holdco necessary for the authorization, execution, delivery and performance of this Agreement.

(b)                                 Title.  Each Note Holder has good and marketable title to such Note Holder’s Original Subordinated Note and is the sole record and beneficial owner of such Original Subordinated Note, which note is owned by such Note Holder free and clear of any rights of first refusal, taxes, liens or other encumbrances.

(c)                                  Further Assurances.  Each of the Parties, at another Party’s request and without further consideration, shall use all reasonable efforts to take, or cause to be taken, all appropriate action, do or cause to be done all things necessary, proper or advisable under applicable laws, including obtaining any necessary consents or approvals from, or making any necessary filings with, any domestic or foreign regulatory agencies, and execute, acknowledge and deliver such documents and other papers, as may be required to carry out the provisions of this Agreement and consummate and make effective the transactions contemplated by this Agreement.

4.                                      Governing Law and Venue.  THIS AGREEMENT SHALL BE GOVERNED AND CONSTRUED BY AND IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS.  THE PARTIES HEREBY IRREVOCABLY SUBMIT TO AND ACKNOWLEDGE AND RECOGNIZE THE JURISDICTION OF THE DISTRICT COURT OF HARRIS COUNTY, TEXAS OR, IF APPROPRIATE, A FEDERAL COURT WITHIN THE SOUTHERN DISTRICT OF TEXAS (WHICH COURTS, TOGETHER WITH ALL APPLICABLE APPELLATE COURTS, FOR PURPOSES OF THIS AGREEMENT, ARE THE ONLY COURTS OF COMPETENT JURISDICTION), OVER ANY SUIT, REQUEST FOR INJUNCTIVE RELIEF, ACTION OR OTHER PROCEEDING ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE SUBJECT MATTER HEREOF.

5.                                      Headings.  The descriptive headings of the several Sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement.

6.                                      Expenses.  Except as otherwise specified in this Agreement, each Party will be responsible for paying its own expenses in connection with the matters that are the subject of this Agreement, as well as the negotiation and documentation of this Agreement, including, without limitation, such Party’s legal fees and expenses.  Notwithstanding the foregoing provisions of this Section 7, in the event of litigation relating to this Agreement, if a court of competent jurisdiction determines in a final, non-appealable order that a party has breached this Agreement, then such party shall be liable and pay to the non-breaching party the reasonable legal fees such non-breaching party has incurred in connection with such litigation, including any appeal therefrom.

7.                                      Entire Agreement; Original Exchange Agreement Superseded. This Agreement (including, for purposes of certainty, the Exhibit attached hereto), the documents to be executed

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hereunder and the amended and restated subordinated notes issued hereunder constitute the entire agreement among the parties pertaining to the subject matter hereof, and supersede all prior agreements, understandings, negotiations and discussions, whether oral or written, of the parties pertaining to the subject matter hereof.  Without limiting the generality of the foregoing, this Agreement supersedes the Original Exchange Agreement, which shall have no further force and effect from and after the date hereof.

8.                                      Counterparts.  This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original but all of which together shall constitute one and the same instrument.  A facsimile, .pdf or electronically transmitted counterpart of this Agreement shall be sufficient to bind a Party to the same extent as an original.

[Signature Page Follows; Remainder of Page Left Blank]

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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement, effective as of the date first written above.

[SIGNATURE PAGE TO SUBORDINATED NOTE MODIFICATION AGREEMENT]

Exhibit A to

Subordinated Note Modification Agreement

Form of First Amended and Restated Subordinated Note

[See Attached]

See Exhibit 4.1 to this Current Report on Form 8-K

Schedule of Substantially Identical Agreements

Pursuant to Instruction 2 of Item 601(a) of Regulation S-K, the Company has filed only the form of the Subordinated Note Modification Agreement although the Company has entered into three such agreements that are substantially identical in all material respects.  Differences in certain details among such other agreements entered into by the Company are noted in the chart below: