DISPOSITION OR VOTING OF
SECURITIES OR OTHERWISE.
4.16
MOST FAVORED NATION PROVISION.
FROM THE DATE HEREOF UNTIL THE
EARLIER OF (A) THE SECURITIES ARE NO LONGER OUTSTANDING OR (B) THE EFFECTIVE
DATE, ANY TIME THE COMPANY EFFECTS A SUBSEQUENT FINANCING, EACH PURCHASER MAY
ELECT, IN ITS SOLE DISCRETION, TO EXCHANGE ALL OR SOME OF THE DEBENTURES THEN
HELD BY IT FOR ANY SECURITIES ISSUED IN A SUBSEQUENT FINANCING BASED ON THE
OUTSTANDING PRINCIPAL AMOUNT OF THE DEBENTURE PLUS ACCRUED BUT UNPAID INTEREST
AND OTHER FEES OWED AND THE EFFECTIVE PRICE AT WHICH SUCH SECURITIES WERE SOLD
IN SUCH SUBSEQUENT PLACEMENT.
4.17
INSURANCE.
WITHIN 45 CALENDAR DAYS OF THE FIRST CLOSING, THE
COMPANY SHALL OBTAIN A POLICY OF DIRECTORS AND OFFICERS LIABILITY INSURANCE IN
AN AMOUNT OF AT LEAST $3,000,000 WITH A RETENTION AMOUNT OF NOT MORE THAN
$300,000.
ARTICLE V.
MISCELLANEOUS
5.1
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED BY ANY PURCHASER,
BY WRITTEN NOTICE TO THE OTHER PARTIES, IF THE FIRST CLOSING HAS NOT BEEN
CONSUMMATED ON OR BEFORE FEBRUARY
, 2005; PROVIDED 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.
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 TAXES AND DUTIES LEVIED
IN CONNECTION WITH THE DELIVERY OF ANY SECURITIES.
5.3
ENTIRE AGREEMENT.
THE TRANSACTION DOCUMENTS, TOGETHER WITH THE
EXHIBITS AND SCHEDULES THERETO, CONTAIN THE ENTIRE UNDERSTANDING OF THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDE ALL PRIOR AGREEMENTS AND
UNDERSTANDINGS, ORAL OR WRITTEN, WITH RESPECT TO SUCH MATTERS, WHICH THE PARTIES
ACKNOWLEDGE HAVE BEEN MERGED INTO SUCH DOCUMENTS, EXHIBITS AND SCHEDULES.
5.4
NOTICES.
ANY AND ALL NOTICES OR OTHER COMMUNICATIONS OR
DELIVERIES REQUIRED OR PERMITTED TO BE PROVIDED HEREUNDER SHALL BE IN WRITING
AND SHALL BE DEEMED GIVEN AND EFFECTIVE ON THE EARLIEST OF (A) THE DATE OF
TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS DELIVERED VIA FACSIMILE AT THE
FACSIMILE NUMBER SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO PRIOR TO 5:30
P.M. (NEW YORK CITY TIME) ON A BUSINESS DAY, (B) THE NEXT BUSINESS DAY AFTER THE
DATE OF TRANSMISSION, IF SUCH NOTICE OR COMMUNICATION IS DELIVERED VIA FACSIMILE
AT THE FACSIMILE NUMBER SET FORTH ON THE SIGNATURE PAGES ATTACHED HERETO ON A
DAY THAT IS NOT A BUSINESS DAY OR LATER THAN 5:30 P.M. (NEW YORK CITY TIME) ON
ANY BUSINESS DAY, (C) THE SECOND BUSINESS DAY FOLLOWING THE DATE OF MAILING, IF
SENT BY U.S. NATIONALLY RECOGNIZED OVERNIGHT COURIER SERVICE, OR (D) UPON ACTUAL
RECEIPT BY THE PARTY TO WHOM SUCH NOTICE IS REQUIRED TO BE GIVEN.
THE ADDRESS
FOR SUCH NOTICES AND COMMUNICATIONS SHALL BE AS SET FORTH