Page 33 of 67 SEC Filing
(d)
The Participation Rights granted under this Section 7.3 shall expire upon, and shall not be applicable to the issuance
of any New Securities that closes before the first to occur of (i) the “Maturity Date”, as defined in the Debenture;
(ii) upon the repayment of the entire principal balance and accrued interest thereon outstanding under the Debenture, pursuant
to the terms thereof; (iii) the acquisition of the Company by another entity by means of any transaction or series of related
transactions to which the Company is party (including, without limitation, any stock acquisition, reorganization, merger or consolidation
but excluding a consolidation with a wholly-owned subsidiary of the Company, a merger effected exclusively to change the domicile
of the Company) other than a transaction or series of transactions in which the holders of the voting securities of the Company
outstanding immediately prior to such transaction continue to retain (either by such voting securities remaining outstanding or
by such voting securities being converted into voting securities of the surviving entity), as a result of shares in the Company
held by such holders prior to such transaction, at least fifty percent (50%) of the total voting power represented by the voting
securities of the Company or such surviving entity outstanding immediately after such transaction or series of transactions; or
(iv) a sale, lease or other conveyance of all or substantially all of the assets of the Company.
7.4 Indebtedness
and Other Transactions. For so long as the Debenture remains outstanding, the Company will not take any of the following actions
without the prior written consent of the Investors: (a) issue any New Securities that are equity securities for the primary purpose
of raising capital at a price per share less than the Per Share Price; (b) issue any New Securities or approve the incurrence of
indebtedness for borrowed money, other than debt or equity securities issued for the primary purpose of raising capital of up to
$15,000,000 in the aggregate; or (c) authorize or effect a Deemed Liquidation Event unless required by fiduciary duties applicable
to the Company’s Board of Directors under applicable law.
8. Miscellaneous.
8.1 Survival.
The representations, warranties, covenants and agreements contained in this Agreement shall survive the Closing of the transactions
contemplated by this Agreement for two years after the Closing.
8.2 Successors
and Assigns. This Agreement may not be assigned by a party hereto without the prior written consent of the Company or the Investors,
as applicable; provided, however, that the Company may assign its rights and delegate its duties hereunder to any surviving
or successor corporation or entity in connection with a merger or consolidation of the Company with another corporation, or a sale,
transfer or other disposition of all or substantially all of the Company’s assets to another corporation or entity, without
the prior written consent of the Investors. The provisions of this Agreement shall inure to the benefit of and be binding upon
the respective permitted successors and assigns of the parties. Nothing in this Agreement, express or implied, is intended to confer
upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations, or liabilities
under or by reason of this Agreement, except as expressly provided in this Agreement.
8.3 Counterparts;
Faxes. This Agreement may be executed in two or more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. This Agreement may also be executed via facsimile, which shall be deemed
an original.
| 20 |
