AND TAKE ALL SUCH ACTIONS AS THE OTHER SHALL REASONABLY REQUEST IN
ORDER TO CARRY OUT THE PURPOSES OF THIS AGREEMENT, INCLUDING WITHOUT LIMITATION
APPROPRIATE AMENDMENTS TO FINANCING STATEMENTS EXECUTED BY THE COMPANY IN FAVOR
OF BERG OR THE PURCHASERS IN ORDER TO REFER TO THIS AGREEMENT (BUT THIS
AGREEMENT SHALL REMAIN FULLY EFFECTIVE NOTWITHSTANDING ANY FAILURE TO EXECUTE
ANY ADDITIONAL DOCUMENTS, INSTRUMENTS, OR AMENDMENTS).
BERG AND THE PURCHASERS
EACH REPRESENTS AND WARRANTS TO THE OTHER THAT IT HAS NOT HERETOFORE TRANSFERRED
OR ASSIGNED ANY FINANCING STATEMENT NAMING THE COMPANY AS DEBTOR AND IT AS
SECURED PARTY, AND THAT IT WILL NOT DO SO WITHOUT FIRST NOTIFYING THE OTHER IN
WRITING, AND DELIVERING A COPY OF THIS AGREEMENT TO THE PROPOSED TRANSFEREE OR
ASSIGNEE, AND OBTAINING THE ACKNOWLEDGMENT OF THE PROPOSED TRANSFEREE OR
ASSIGNEE THAT THE TRANSFER OR ASSIGNMENT IS SUBJECT TO ALL OF THE TERMS OF THIS
AGREEMENT.
THIS AGREEMENT IS SOLELY FOR THE BENEFIT OF THE PURCHASERS AND BERG
AND THEIR SUCCESSORS AND ASSIGNS, AND NEITHER THE COMPANY NOR ANY OTHER PERSON
SHALL HAVE ANY RIGHT, BENEFIT, PRIORITY OR INTEREST UNDER, OR BECAUSE OF THE
EXISTENCE OF, THIS AGREEMENT, PROVIDED THAT THIS AGREEMENT EXTENDS CERTAIN
RIGHTS TO BANK IN CONCERT WITH THE BANK INTERCREDITOR AGREEMENT.
THIS AGREEMENT
SETS FORTH IN FULL THE TERMS OF AGREEMENT BETWEEN BERG AND THE PURCHASERS WITH
RESPECT TO THE SUBJECT MATTER HEREOF, AND MAY NOT BE MODIFIED OR AMENDED, NOR
MAY ANY RIGHTS HEREUNDER BE WAIVED, EXCEPT IN A WRITING SIGNED BY BERG AND THE
PURCHASERS.
IN THE EVENT OF ANY
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LITIGATION BETWEEN THE PARTIES BASED UPON OR ARISING OUT OF THIS AGREEMENT, THE
PREVAILING PARTY SHALL BE ENTITLED TO RECOVER ALL OF ITS COSTS AND EXPENSES
(INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES) FROM THE NON-PREVAILING PARTY.
THIS AGREEMENT SHALL BE BINDING UPON THE PARTIES HERETO AND THEIR RESPECTIVE
SUCCESSORS AND ASSIGNS, AND SHALL BE CONSTRUED IN ACCORDANCE WITH, AND GOVERNED
BY, THE LAWS OF CALIFORNIA.
THIS AGREEMENT MAY BE EXECUTED IN TWO OR MORE
COUNTERPARTS, EACH OF WHICH SHALL BE DEEMED AN ORIGINAL, BUT ALL OF WHICH SHALL
CONSTITUTE THE SAME INSTRUMENT.
14.
PURCHASERS' AGENT.
BERG ACKNOWLEDGES THAT PURCHASERS' AGENT HAS
BEEN AUTHORIZED BY THE PURCHASERS TO ACT FOR THE PURCHASERS IN ALL MATTERS UNDER
THE SECURITY AGREEMENT AND HE AGREES TO ACCEPT THE ACTS AND WRITINGS OF THE
PURCHASERS' AGENT ON THEIR BEHALF.
EACH OF THE UNDERSIGNED PURCHASERS AGREES
THAT ALL ACTS AND WRITINGS OF THE PURCHASERS' AGENT CONSISTENT WITH THE TERMS OF
THIS AGREEMENT SHALL BE BINDING ON SUCH PURCHASER FOR ALL PURPOSES UNDER THIS
AGREEMENT.
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Intercreditor Agreement as of January 24, 2006.
/s/ Carl Berg
CARL E. BERG
PURCHASERS' AGENT
By:
/s/ Thomas Boucher Jr.
Name:
Thomas Boucher Jr.
PURCHASER
Name:
By:
Title:
SIGNATURE PAGE FOR INTERCREDITOR AGREEMENT
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COMPANY'S CONSENT AND AGREEMENT
The Company consents to the terms of this Intercreditor Agreement and agrees not
to take any actions inconsistent therewith.
The Company agrees to execute