WAIVER BY THE
COMPANY, AT OR BEFORE THE CLOSING, OF EACH OF THE FOLLOWING CONDITIONS:
(A)
REPRESENTATIONS AND WARRANTIES.
THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS CONTAINED HEREIN SHALL BE TRUE
AND CORRECT IN ALL MATERIAL RESPECTS AS OF THE DATE WHEN MADE AND AS OF THE
CLOSING DATE AS THOUGH MADE ON AND AS OF SUCH DATE;
(B)
PERFORMANCE.
THE PURCHASERS SHALL HAVE
PERFORMED, SATISFIED AND COMPLIED IN ALL MATERIAL RESPECTS WITH ALL COVENANTS,
AGREEMENTS AND CONDITIONS REQUIRED BY THE TRANSACTION DOCUMENTS TO BE PERFORMED,
SATISFIED OR COMPLIED WITH BY THE PURCHASERS AT OR PRIOR TO THE CLOSING; AND
(C)
NO INJUNCTION.
NO STATUTE, RULE,
REGULATION, EXECUTIVE ORDER, DECREE, RULING OR INJUNCTION SHALL HAVE BEEN
ENACTED, ENTERED, PROMULGATED OR ENDORSED BY ANY COURT OR GOVERNMENTAL AUTHORITY
OF COMPETENT JURISDICTION THAT PROHIBITS THE CONSUMMATION OF ANY OF THE
TRANSACTIONS CONTEMPLATED BY THE TRANSACTION DOCUMENTS.
ARTICLE VI
MISCELLANEOUS
6.1
TERMINATION.
THIS AGREEMENT MAY BE
TERMINATED BY EITHER THE PURCHASER OR THE COMPANY, BY WRITTEN NOTICE TO THE
OTHER PARTY, IF THE CLOSING HAS NOT BEEN CONSUMMATED BY THE FIFTH TRADING DAY
FOLLOWING THE DATE OF THIS AGREEMENT; PROVIDED THAT NO SUCH TERMINATION WILL
AFFECT THE RIGHT OF ANY PARTY TO SUE FOR ANY BREACH BY THE OTHER PARTY (OR
PARTIES).
6.2
FEES AND EXPENSES.
AT THE CLOSING, THE
COMPANY SHALL PAY TO MAINFIELD ENTERPRISES, INC., AN AGGREGATE OF $75,000 FOR
THEIR LEGAL FEES AND EXPENSES INCURRED IN CONNECTION WITH THE PREPARATION AND
NEGOTIATION OF THE TRANSACTION DOCUMENTS, OF WHICH AMOUNT $25,000 HAS BEEN
PREVIOUSLY PAID BY THE COMPANY TO PROSKAUER ROSE LLP.
IN LIEU OF THE FOREGOING
PAYMENTS, MAINFIELD ENTERPRISES, INC. MAY RETAIN THE AMOUNT OF SUCH PAYMENTS
INSTEAD OF DELIVERING SUCH AMOUNTS TO THE COMPANY AT THE CLOSING.
EXCEPT AS
EXPRESSLY SET FORTH IN THE TRANSACTION DOCUMENTS TO THE CONTRARY, EACH PARTY
SHALL PAY THE FEES AND EXPENSES OF ITS
31
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
issuance of any Securities.
6.3
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.
AT OR AFTER THE CLOSING, AND WITHOUT FURTHER
CONSIDERATION, THE COMPANY WILL EXECUTE AND DELIVER TO THE PURCHASERS SUCH
FURTHER DOCUMENTS AS MAY BE REASONABLY REQUESTED IN ORDER TO GIVE PRACTICAL
EFFECT TO THE INTENTION OF THE PARTIES UNDER THE TRANSACTION DOCUMENTS.
NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, SECURITIES MAY BE ASSIGNED TO
ANY PERSON IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY SUCH SECURITIES.
6.4
NOTICES.
ANY AND ALL NOTICES OR OTHER