Page 11 of 67 SEC Filing
4.
Restrictive Legend. Each certificate representing any of the Shares subject to this Agreement shall be marked by
the Company with a legend reading substantially as follows:
“THE SHARES EVIDENCED HEREBY ARE
SUBJECT TO A NOMINATION AND VOTING AGREEMENT (A COPY OF WHICH MAY BE OBTAINED FROM THE ISSUER) AND BY ACCEPTING ANY INTEREST IN
SUCH SHARES THE PERSON HOLDING SUCH INTEREST SHALL BE DEEMED TO AGREE TO AND SHALL BECOME BOUND BY ALL THE PROVISIONS OF SAID NOMINATION
AND VOTING AGREEMENT.”
5.
Termination. This Agreement shall terminate upon the earlier of: (i) the date of the repayment by the Company of
the entire principal balance of the Debenture, together with all interest accrued or payable thereunder; and (ii) after a conversion
of the outstanding principal and interest of the Debenture into Common Stock, the date which the Investors no longer own fifty
percent (50%) of the Company’s Common Stock on a fully diluted basis.
6.
Miscellaneous.
(a)
Notices. All notices and other communications hereunder shall be in writing and shall be deemed received (a) on the
date of delivery if delivered personally and/or by messenger service, (b) on the date of confirmation of receipt of transmission
by facsimile (or, the first Business Day following such receipt if (i) the date is not a Business Day or (ii) confirmation of receipt
is given after 5:00 p.m., Pacific Time) or (c) on the date of confirmation of receipt if delivered by a nationally or internationally
recognized courier service (or, the first Business Day following such receipt if (i) the date is not a Business Day or (ii) confirmation
of receipt is given after 5:00 p.m., Pacific Time), to the parties at the addresses set forth in the Purchase Agreement (or at
such other address for a party as shall be specified by like notice).
(b)
Successors and Assigns. The provisions of this Agreement shall inure to the benefit of, and be binding upon, the
successors, assigns, heirs, executors and administrators of the parties hereto. The Company shall not permit the transfer of any
Shares on its books or issue a new certificate representing any Shares unless and until the person to whom such security is to
be transferred shall have executed a written agreement pursuant to which such person becomes a party to this Agreement and agrees
to be bound by all the provisions hereof as if such person was an Investor hereunder.
(c) Entire
Agreement; Severability. This Nomination and Voting Agreement, together with the Purchase Agreement and
the “Transaction Documents” contemplated thereby, constitute the full and entire understanding, promise and
agreement by and among the Company and the Investors with respect to the subject matter hereof, and it supersedes, merges and
renders void every other prior written and/or oral understanding, promise or agreement by and among the Company and the
Investors. If one or more provisions of this Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Agreement, the balance of the Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms, and the parties shall use good faith to negotiate a
substitute, valid and enforceable provision that replaces the excluded provision and that most nearly effects the
parties’ intent in entering into this Agreement.
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