THE PARENT IN LIGHT OF RELEVANT RULES AND
REGULATIONS UNDER THE LAWS SET FORTH IN SUBSECTION (II) ABOVE.
(I)
LIMITATION ON ACQUISITION OF COMMON
STOCK.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT,
ANY ANCILLARY AGREEMENT, OR ANY DOCUMENT, INSTRUMENT OR AGREEMENT ENTERED INTO
IN CONNECTION WITH ANY OTHER TRANSACTION ENTERED INTO BY AND BETWEEN LAURUS AND
ANY COMPANY (AND/OR SUBSIDIARIES OR AFFILIATES OF ANY COMPANY), LAURUS SHALL NOT
ACQUIRE STOCK IN THE PARENT (INCLUDING, WITHOUT LIMITATION, PURSUANT TO A
CONTRACT TO PURCHASE, BY EXERCISING AN OPTION OR WARRANT, BY CONVERTING ANY
OTHER SECURITY OR INSTRUMENT, BY ACQUIRING OR EXERCISING ANY OTHER RIGHT TO
ACQUIRE, SHARES OF STOCK OR OTHER SECURITY CONVERTIBLE INTO SHARES OF STOCK IN
THE PARENT, OR OTHERWISE, AND SUCH OPTIONS, WARRANTS, CONVERSION OR OTHER RIGHTS
SHALL NOT BE EXERCISABLE) TO THE EXTENT SUCH STOCK ACQUISITION WOULD CAUSE ANY
INTEREST (INCLUDING ANY ORIGINAL ISSUE DISCOUNT) PAYABLE BY ANY COMPANY TO
LAURUS NOT TO QUALIFY AS PORTFOLIO INTEREST, WITHIN THE MEANING OF
SECTION 881(C)(2) OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE")
BY REASON OF SECTION 881(C)(3) OF THE CODE, TAKING INTO ACCOUNT THE CONSTRUCTIVE
OWNERSHIP RULES UNDER SECTION 871(H)(3)(C) OF THE CODE (THE "STOCK ACQUISITION
LIMITATION").
THE STOCK ACQUISITION LIMITATION SHALL AUTOMATICALLY BECOME NULL
AND VOID WITHOUT ANY NOTICE TO ANY COMPANY UPON THE EARLIER TO OCCUR OF EITHER
(A) THE PARENT'S DELIVERY TO LAURUS OF A NOTICE OF REDEMPTION (AS DEFINED IN THE
NOTES) OR (B) THE EXISTENCE OF AN EVENT OF DEFAULT AT A TIME WHEN THE AVERAGE
CLOSING PRICE OF THE COMMON STOCK AS REPORTED BY BLOOMBERG, L.P. ON THE
PRINCIPAL MARKET FOR THE IMMEDIATELY PRECEDING FIVE TRADING DAYS IS GREATER THAN
OR EQUAL TO 150% OF THE FIXED CONVERSION PRICE (AS DEFINED IN THE NOTES).
16.
POWER OF ATTORNEY.
EACH COMPANY HEREBY
APPOINTS LAURUS, OR ANY OTHER PERSON WHOM LAURUS MAY DESIGNATE AS SUCH COMPANY'S
ATTORNEY, WITH POWER TO:
(I) ENDORSE SUCH COMPANY'S NAME ON ANY CHECKS, NOTES,
ACCEPTANCES, MONEY ORDERS, DRAFTS OR OTHER FORMS OF PAYMENT OR SECURITY THAT MAY
COME INTO LAURUS' POSSESSION; (II) SIGN SUCH COMPANY'S NAME ON
30
ANY INVOICE OR BILL OF LADING RELATING TO ANY ACCOUNTS, DRAFTS AGAINST ACCOUNT
DEBTORS, SCHEDULES AND ASSIGNMENTS OF ACCOUNTS, NOTICES OF ASSIGNMENT, FINANCING
STATEMENTS AND OTHER PUBLIC RECORDS, VERIFICATIONS OF ACCOUNT AND NOTICES TO OR
FROM ACCOUNT DEBTORS; (III) VERIFY THE VALIDITY, AMOUNT OR ANY OTHER MATTER
RELATING TO ANY ACCOUNT BY MAIL, TELEPHONE, TELEGRAPH OR OTHERWISE WITH ACCOUNT
DEBTORS; (IV) DO ALL THINGS NECESSARY TO CARRY OUT THIS AGREEMENT, ANY ANCILLARY
AGREEMENT AND ALL RELATED DOCUMENTS; AND (V) ON OR AFTER THE OCCURRENCE AND
DURING THE CONTINUATION OF AN EVENT OF DEFAULT, NOTIFY THE POST OFFICE
AUTHORITIES TO CHANGE THE ADDRESS FOR DELIVERY OF SUCH COMPANY'S MAIL TO AN
ADDRESS DESIGNATED BY LAURUS, AND TO RECEIVE, OPEN AND DISPOSE OF ALL MAIL
ADDRESSED TO SUCH COMPANY.
EACH COMPANY HEREBY RATIFIES AND APPROVES ALL ACTS
OF THE ATTORNEY.
NEITHER LAURUS, NOR THE ATTORNEY WILL BE LIABLE