SAME OR SUBSTANTIALLY THE SAME RESULT AS THAT
CONTEMPLATED BY SUCH TERM, PROVISION, COVENANT OR RESTRICTION. IT IS HEREBY
STIPULATED AND DECLARED TO BE THE INTENTION OF THE PARTIES THAT THEY WOULD HAVE
EXECUTED THE REMAINING TERMS, PROVISIONS, COVENANTS AND RESTRICTIONS WITHOUT
INCLUDING ANY OF SUCH THAT MAY BE HEREAFTER DECLARED INVALID, ILLEGAL, VOID OR
UNENFORCEABLE.
24.
INDEPENDENT NATURE OF PURCHASERS' OBLIGATIONS AND RIGHTS.
THE
OBLIGATIONS OF EACH PURCHASER HEREUNDER ARE SEVERAL AND NOT JOINT WITH THE
OBLIGATIONS OF ANY OTHER PURCHASERS HEREUNDER, AND NO PURCHASER SHALL BE
RESPONSIBLE IN ANY WAY FOR THE PERFORMANCE OF THE OBLIGATIONS OF ANY OTHER
PURCHASER HEREUNDER. NOTHING CONTAINED HEREIN OR IN ANY OTHER AGREEMENT OR
DOCUMENT DELIVERED AT ANY CLOSING, AND NO ACTION TAKEN BY ANY PURCHASER PURSUANT
HERETO, SHALL BE DEEMED TO CONSTITUTE THE PURCHASERS AS A PARTNERSHIP, AN
ASSOCIATION, A JOINT VENTURE OR ANY OTHER KIND OF ENTITY, OR CREATE A
PRESUMPTION THAT THE PURCHASERS ARE IN ANY WAY ACTING IN CONCERT WITH RESPECT TO
SUCH OBLIGATIONS OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH
PURCHASER SHALL BE ENTITLED TO PROTECT AND ENFORCE ITS RIGHTS, INCLUDING WITHOUT
LIMITATION THE RIGHTS ARISING OUT OF THIS AGREEMENT, AND IT SHALL NOT BE
NECESSARY FOR ANY OTHER PURCHASER TO BE JOINED AS AN ADDITIONAL PARTY IN ANY
PROCEEDING FOR SUCH PURPOSE. EACH PURCHASER HAS BEEN REPRESENTED BY ITS OWN
SEPARATE LEGAL COUNSEL IN THEIR REVIEW AND NEGOTIATION OF THE TRANSACTION
DOCUMENTS.
FOR REASONS OF ADMINISTRATIVE CONVENIENCE ONLY, PURCHASERS AND THEIR
RESPECTIVE COUNSEL HAVE CHOSEN TO COMMUNICATE WITH THE COMPANY THROUGH WEINSTEIN
SMITH LLP ("WS").
WS DOES NOT REPRESENT ALL OF THE PURCHASERS BUT ONLY ENABLE
CAPITAL MANAGEMENT, LLC. THE COMPANY HAS ELECTED TO PROVIDE ALL PURCHASERS WITH
THE SAME TERMS FOR THE CONVENIENCE OF THE COMPANY AND NOT BECAUSE IT WAS
REQUIRED OR REQUESTED TO DO SO BY THE PURCHASERS.
25.
CONSTRUCTION. THE PARTIES AGREE THAT EACH OF THEM AND/OR THEIR
RESPECTIVE COUNSEL HAS REVIEWED AND HAD AN OPPORTUNITY TO REVISE THIS AGREEMENT
AND, THEREFORE, THE NORMAL RULE OF CONSTRUCTION TO THE EFFECT THAT ANY
AMBIGUITIES ARE TO BE RESOLVED AGAINST THE DRAFTING PARTY SHALL NOT BE EMPLOYED
IN THE INTERPRETATION OF THIS AGREEMENT OR ANY AMENDMENTS HERETO.
26.
RE-ISSUANCE OF DEBENTURES AND WARRANTS. UPON THE WRITTEN REQUEST
OF EITHER ANY OF THE PURCHASERS OR THE COMPANY, EACH PARTY SHALL USE
COMMERCIALLY REASONABLE EFFORTS TO DELIVER THE INSTRUMENTS REPRESENTING THE
ORIGINAL DEBENTURES AND WARRANTS TO THE COMPANY IN
9
EXCHANGE FOR REPLACEMENT INSTRUMENTS THAT REFLECT THE REVISED TERMS OF SUCH
SECURITIES AS SET FORTH IN THIS AGREEMENT.
[SIGNATURE PAGE FOLLOWS]
10
IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to
be duly executed by their respective authorized signatories as of the date first
indicated above.
ETELOS, INC.
By:
/s/ Daniel Kolke
Name:
Daniel Kolke
Title:
CEO
********************
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
SIGNATURE PAGE FOR HOLDERS FOLLOW]
11
[PURCHASER'S SIGNATURE PAGE TO ETLO AMENDMENT AGREEMENT]
IN WITNESS WHEREOF, the undersigned have caused this Amendment Agreement to be