EXHIBIT 4.10
SUMMUS [LOGO]
000 Xxxxxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, XX 00000
November 18, 2005
LAP Summus Holdings LLC
c/o Liberty Associated Partners, L.P.
0 Xxxx Xxxxx Xxxx, Xxxxx 000
Xxxx Xxxxxx, XX 00000
Attn.: Xxxxx X. Xxxxx
We refer to the Securities Purchase Agreement, the Security
Agreement and the Registration Rights Agreement each dated as of the
date hereof among you, us and the other parties referenced therein as
well as to the 6% Senior Secured Debenture (the "Debenture") and the
Stock Purchase Warrants granted by us to you on the date hereof (all
these documents together the "Transaction Documents").
As an inducement to your participation in the transactions
contemplated by the Transaction Documents, we hereby acknowledge and
agree that we will promptly (and in any event within ten days) on your
written request name any person you designate to our Board of
Directors, and we hereby agree that we will use our best efforts to
cause such person (or any substitute person you designate) to be
elected to and thereafter remain on our Board of Directors for such
period of time as you own the Debenture or own or have the right to
acquire at least ten percent of the shares to which you immediately
after issuance of the Debenture have the right to acquire under the
warrants issued in connection with the Debenture. Such designee shall
also be nominated to any executive (or comparable) committee of the
board, and any other committee that the board determines in its
judgement and will be promptly furnished with all information provided
by the Company to the other members of the Board of Directors or such
committee. In addition, such designee shall have notice of, and the
right to observe meetings of any other committees of the board, and
shall be promptly furnished with all information provided to members of
such other committees. The failure to be in compliance with this
undertaking will constitute a "default" under any of the Transaction
Agreements.
We further acknowledge and agree that LAP Summus Holdings, LLC
and its partners, affiliates and affiliates of its partners engage in a
wide variety of activities and have investments in many other
companies, some of which may be competitive with our business. LAP
Summus Holdings, LLC shall not be liable for any claim arising out of,
related to or based upon, (a) the investment by LAP Summus Holdings,
LLC in any
Summus, Inc.
main office: 919.807.5600 o toll free: 000.000.0000 o fax: 000.000.0000
xxx.xxxxxx.xxx
entity competitive to Summus, Inc. or (b) actions taken by any partner,
officer or other representative of LAP Summus Holdings, LLC to assist
any such competitive company, whether or not such action was taken as a
board member of such competitive company or otherwise, and whether or
not such action has a detrimental effect on Summus, Inc. The foregoing
limitation shall not apply in the event that such claim arises out of
or relates to a breach by LAP Summus Holdings, LLC of any agreement
with us, including the agreement not to disclose confidential
information of Summus, Inc.
Very truly yours,
/s/ Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx
Chief Financial Officer