ANY OF THEIR RESPECTIVE ASSETS (INCLUDING COMMENCING ANY
LEGAL OR EQUITABLE ACTION OR FILING OR JOINING IN THE FILING OF ANY INSOLVENCY
PETITION) UNTIL THE PURCHASERS WILL FIRST BE PAID, IN FULL, ALL AMOUNTS DUE OR
TO BECOME DUE ON OR IN RESPECT OF THE SECURITIES.
UPON ANY PAYMENT OR
DISTRIBUTION REFERRED TO IN THIS SECTION 4.16(B), THE COMPANY SHALL BE ENTITLED
TO RELY UPON ANY ORDER OR DECREE OF A COURT OF COMPETENT JURISDICTION IN WHICH
SUCH DISTRIBUTION EVENT PROCEEDINGS ARE PENDING; PROVIDED, HOWEVER, THAT SUCH
ORDER OR DECREE EXPRESSLY GIVES EFFECT TO THE PROVISIONS OF THIS SECTION 4.16.
4.17
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 HAS A MATERIAL ADVERSE EFFECT ON
THE RIGHTS OF THE PURCHASERS UNDER THIS AGREEMENT OR THE HOLDERS OF SERIES B
PREFERRED STOCK UNDER THE CERTIFICATE OF DESIGNATIONS.
4.18
FUNDAMENTAL CHANGES.
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 ANY SHARES OF SERIES B PREFERRED STOCK 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
SHARES OF SERIES B PREFERRED STOCK THEN OUTSTANDING:
(A)
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 DIVIDEND (INCLUDING A DIVIDEND PAYABLE IN STOCK OF THE COMPANY) OR
MAKE ANY OTHER DISTRIBUTION WITH RESPECT TO, ANY SHARES OF CAPITAL STOCK OR ANY
OTHER SECURITIES THAT ARE CONVERTIBLE INTO OR EXERCISABLE FOR SUCH STOCK (OTHER
THAN THE SERIES B PREFERRED STOCK), OR ANY PERMITTED SUBORDINATED DEBT, OR SET
ASIDE ANY MONIES FOR SUCH A REDEMPTION, PURCHASE OR OTHER ACQUISITION;
29
(B)
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;
(C)
USE MORE THAN $25 MILLION IN THE AGGREGATE OF ITS AVAILABLE CASH ON THE
DATE HEREOF (TAKING INTO ACCOUNT THE PROCEEDS RECEIVED FROM THIS TRANSACTION)
FOR ACQUISITIONS; OR
(D)
CAUSE OR PERMIT ANY SUBSIDIARY DIRECTLY OR INDIRECTLY TO TAKE ANY ACTIONS
DESCRIBED IN CLAUSES (A) THROUGH (C) ABOVE, OTHER THAN ISSUING SECURITIES TO THE
COMPANY OR ANY WHOLLY-OWNED SUBSIDIARY.
4.19
VOTING AGREEMENT.
EACH PURCHASER HEREBY AGREES
THAT FOR SO LONG AS IT HOLDS SERIES B PREFERRED STOCK, IT SHALL VOTE ITS SHARES
OF SERIES B PREFERRED STOCK AND COMMON STOCK ON ALL MATTERS IN WHICH SUCH
PURCHASER OR ITS AFFILIATES IS ENTITLED TO VOTE AND ON WHICH HOLDERS OF COMMON
STOCK HAVE THE RIGHT TO VOTE, IN THE MANNER RECOMMENDED BY THE BOARD OF
DIRECTORS OF THE COMPANY TO ALL OF ITS SHAREHOLDERS UNLESS THE BOARD OF
DIRECTORS OF