IN ITS SOLE DISCRETION, TO EXCHANGE ALL OR SOME OF THE
DEBENTURES THEN HELD BY SUCH PURCHASER FOR ADDITIONAL SECURITIES OF THE SAME
CLASS ISSUED IN A SUBSEQUENT FINANCING BASED ON THE EFFECTIVE PRICE AT WHICH
SUCH SECURITIES WERE SOLD IN SUCH SUBSEQUENT FINANCING.
THE COMPANY SHALL
PROVIDE EACH PURCHASER NOTICE OF ANY SUCH SUBSEQUENT FINANCING IN THE MANNER
PROVIDED IN SECTION 4.13.
29
4.18
SPAXEN.
The Company agrees that it will use its
reasonable best efforts to promptly cause Dr. L. David Tomei, under the
supervision of a committee of three independent members of the board of
directors, including two of the Investor Nominees (or in the event there is only
one Investor Nominee, a committee consisting of the Lead Investor and two
independent directors, one of which is selected by the Lead Investor), to
undertake to restructure the corporate and/or licensing arrangements relating to
its SpaXen joint venture such that all technology and intellectual property
under the control of the Company and royalties payable by the Company are
commercially reasonable.
4.19
Appointment of Agent.
The Investors hereby appoint Gian Luigi
Buitoni to act as their agent ("Agent") for purposes of exercising any and all
rights and remedies of the Investors hereunder. Such appointment shall continue
until revoked in writing by a the holders of a the majority of the principal
amount of the Debentures outstanding who shall appoint a new Agent; provided,
that Buitoni may not be removed as Agent unless Buitoni shall then hold less
than $25,000 principal amount of Debentures of the Company. The Agent shall have
the rights, responsibilities and immunities set forth in Annex B hereto.
ARTICLE V.
MISCELLANEOUS
5.1
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED BY ANY PURCHASER,
AS TO SUCH PURCHASER'S OBLIGATIONS HEREUNDER ONLY AND WITHOUT ANY EFFECT
WHATSOEVER ON THE OBLIGATIONS BETWEEN THE COMPANY AND THE OTHER PURCHASERS, BY
WRITTEN NOTICE TO THE OTHER PARTIES, IF THE CLOSING HAS NOT BEEN CONSUMMATED ON
OR BEFORE NOVEMBER 14, 2006; PROVIDED, HOWEVER, THAT NO SUCH TERMINATION WILL
AFFECT THE RIGHT OF ANY PARTY TO SUE FOR ANY BREACH BY THE OTHER PARTY (OR
PARTIES).
5.2
FEES AND EXPENSES.
AT THE CLOSING, THE COMPANY HAS AGREED TO
REIMBURSE GIAN LUIGI BUITONI (THE "LEAD INVESTOR") THE NON-ACCOUNTABLE SUM OF
$25,000, FOR ITS ACTUAL, REASONABLE, OUT-OF-POCKET LEGAL FEES AND EXPENSES.
ACCORDINGLY, IN LIEU OF THE FOREGOING PAYMENTS, THE AGGREGATE AMOUNT THAT THE
LEAD INVESTOR IS TO PAY FOR THE SECURITIES AT THE CLOSING SHALL BE REDUCED BY
$25,000 IN LIEU THEREOF. THE COMPANY SHALL DELIVER, PRIOR TO THE CLOSING, A
COMPLETED AND EXECUTED COPY OF THE CLOSING STATEMENT, ATTACHED HERETO AS ANNEX
A.
EXCEPT AS EXPRESSLY SET FORTH IN THE TRANSACTION DOCUMENTS TO THE CONTRARY,
EACH PARTY SHALL PAY THE FEES AND EXPENSES OF ITS ADVISERS, COUNSEL, ACCOUNTANTS
AND OTHER EXPERTS, IF ANY, AND ALL OTHER EXPENSES INCURRED BY SUCH PARTY
INCIDENT TO THE NEGOTIATION, PREPARATION, EXECUTION, DELIVERY AND PERFORMANCE OF
THIS AGREEMENT.
THE COMPANY SHALL PAY ALL TRANSFER AGENT FEES, STAMP TAXES AND
OTHER