OR PARI PASSU WITH, THE NOTES IN RIGHT OF PAYMENT, WHETHER
WITH RESPECT TO INTEREST OR UPON LIQUIDATION OR DISSOLUTION, OR OTHERWISE;
PROVIDED, HOWEVER, THAT NOTWITHSTANDING THE FOREGOING, THE COMPANY MAY, IN THE
ORDINARY COURSE OF BUSINESS, INCUR INDEBTEDNESS SECURED BY PURCHASE MONEY
SECURITY INTERESTS (WHICH WILL BE SENIOR ONLY AS TO THE UNDERLYING ASSETS
COVERED THEREBY) AND INDEBTEDNESS UNDER CAPITAL LEASE OBLIGATIONS (WHICH
WILL
BE SENIOR ONLY AS TO THE UNDERLYING ASSETS COVERED THEREBY); PROVIDED, HOWEVER,
THAT THE COMPANY MAY INCUR ANY SUCH INDEBTEDNESS IF THE PROCEEDS RECEIVED IN
RESPECT THEREOF ARE USED FOR REPAYMENT OF THE NOTES IN FULL, TO THE EXTENT
PERMISSIBLE UNDER THE NOTE.
(B)
THE PROVISIONS OF THIS SECTION 4.10 SHALL TERMINATE AND BE OF NO FURTHER
FORCE OR EFFECT UPON THE CONVERSION OR INDEFEASIBLE REPAYMENT IN FULL OF THE
NOTES AND ALL ACCRUED INTEREST THEREON AND ANY AND ALL EXPENSES OR LIABILITIES
RELATING THERETO.
4.11
REPAYMENT OF NOTES.
EACH OF THE PARTIES HERETO AGREES THAT ALL
REPAYMENTS OF THE NOTES (INCLUDING ANY ACCRUED INTEREST THEREON) BY THE COMPANY
(OTHER THAN BY CONVERSION OF THE NOTES) WILL BE PAID PRO RATA TO THE HOLDERS
THEREOF BASED UPON THE PRINCIPAL AMOUNT THEN OUTSTANDING TO EACH OF SUCH
HOLDERS.
4.12
NO IMPAIRMENT.
AT ALL TIMES AFTER THE DATE HEREOF, THE COMPANY WILL
NOT TAKE OR PERMIT ANY ACTION, OR CAUSE OR PERMIT ANY SUBSIDIARY TO TAKE OR
PERMIT ANY ACTION THAT IMPAIRS OR ADVERSELY AFFECTS THE RIGHTS OF THE PURCHASERS
UNDER THE AGREEMENT OR THE NOTES.
24
4.13
FUNDAMENTAL CHANGES.
(A)
IN ADDITION TO ANY OTHER RIGHTS PROVIDED BY LAW OR SET FORTH HEREIN, FROM
AND AFTER THE DATE OF THIS AGREEMENT AND FOR SO LONG AS AT LEAST $3,000,000 IN
PRINCIPAL AMOUNT OF THE NOTES REMAIN OUTSTANDING, THE COMPANY SHALL NOT WITHOUT
FIRST OBTAINING THE APPROVAL (BY VOTE OR WRITTEN CONSENT, AS PROVIDED BY LAW) OF
THE HOLDERS OF A MAJORITY OF THE OUTSTANDING PRINCIPAL FACE AMOUNT OF THE NOTES:
(I)
PURCHASE, REDEEM (OTHER THAN PURSUANT TO EQUITY INCENTIVE AGREEMENTS WITH
EMPLOYEES GIVING THE COMPANY THE RIGHT TO REPURCHASE SHARES UPON THE TERMINATION
OF SERVICES) OR SET ASIDE ANY SUMS FOR THE PURCHASE OR REDEMPTION OF, OR DECLARE
OR PAY ANY CASH DIVIDEND OR MAKE ANY OTHER CASH DISTRIBUTION WITH RESPECT TO,
ANY SHARES OF CAPITAL STOCK OR ANY OTHER SECURITIES THAT ARE CONVERTIBLE INTO OR
EXERCISABLE FOR SUCH STOCK (EXCLUDING WITH RESPECT TO THE SECURITIES AS
CONTEMPLATED BY THE TRANSACTION DOCUMENTS);
(II)
CHANGE THE NATURE OF THE COMPANY'S BUSINESS TO ANY BUSINESS WHICH IS
FUNDAMENTALLY DISTINCT AND SEPARATE FROM THE BUSINESS CURRENTLY CONDUCTED BY THE
COMPANY; OR
(III)
CAUSE OR PERMIT ANY SUBSIDIARY OF THE COMPANY DIRECTLY OR INDIRECTLY TO
TAKE ANY ACTIONS DESCRIBED IN CLAUSES (A) THROUGH (B) ABOVE, OTHER THAN ISSUING
SECURITIES TO THE COMPANY.
(B)
FROM THE DATE OF THIS AGREEMENT UNTIL THE 30TH TRADING DAY FOLLOWING THE
EFFECTIVE DATE, THE COMPANY SHALL NOT WITHOUT FIRST OBTAINING THE WRITTEN
APPROVAL OF IROQUOIS MASTER FUND, LTD:
(I)
ACQUIRE OR MERGE WITH ANY