SOLD WITHOUT THE REQUIREMENT FOR THE
COMPANY TO BE IN COMPLIANCE WITH RULE 144(C)(1) AND OTHERWISE WITHOUT
RESTRICTION OR LIMITATION PURSUANT TO RULE 144, IF THE COMPANY SHALL FAIL FOR
ANY REASON TO SATISFY THE CURRENT PUBLIC INFORMATION REQUIREMENT UNDER
RULE 144(C) (A "PUBLIC INFORMATION FAILURE") THEN, IN ADDITION TO SUCH
PURCHASER'S OTHER AVAILABLE REMEDIES, THE COMPANY SHALL PAY TO A PURCHASER, IN
CASH, AS PARTIAL LIQUIDATED DAMAGES AND NOT AS A PENALTY, BY REASON OF ANY SUCH
DELAY IN OR REDUCTION OF ITS ABILITY TO SELL THE SECURITIES, AN AMOUNT IN CASH
EQUAL TO ONE PERCENT (1.0%) OF THE AGGREGATE SUBSCRIPTION AMOUNT OF SUCH
PURCHASER'S SECURITIES ON THE DAY OF A PUBLIC INFORMATION FAILURE AND ON EVERY
THIRTIETH (30TH) DAY (PRO RATED FOR PERIODS TOTALING LESS THAN THIRTY DAYS)
THEREAFTER UNTIL THE EARLIER OF (A) THE DATE SUCH PUBLIC INFORMATION FAILURE IS
CURED AND (B) SUCH TIME THAT SUCH PUBLIC INFORMATION IS NO LONGER REQUIRED
FOR
THE PURCHASERS TO TRANSFER THE UNDERLYING SHARES PURSUANT TO RULE 144. THE
PAYMENTS TO WHICH A PURCHASER SHALL BE ENTITLED PURSUANT TO THIS SECTION 4.18
ARE REFERRED TO HEREIN AS "PUBLIC INFORMATION FAILURE PAYMENTS."
PUBLIC
INFORMATION FAILURE PAYMENTS SHALL BE PAID ON THE EARLIER OF (I) THE LAST DAY OF
THE CALENDAR MONTH DURING WHICH SUCH PUBLIC INFORMATION FAILURE PAYMENTS ARE
INCURRED AND (II) THE THIRD (3RD) BUSINESS DAY AFTER THE EVENT OR FAILURE GIVING
RISE TO THE PUBLIC INFORMATION FAILURE PAYMENTS IS CURED. IN THE EVENT THE
COMPANY FAILS TO MAKE PUBLIC INFORMATION FAILURE PAYMENTS IN A TIMELY MANNER,
SUCH PUBLIC INFORMATION FAILURE PAYMENTS SHALL BEAR INTEREST AT THE RATE OF 1.5%
PER
29
MONTH (PRORATED FOR PARTIAL MONTHS) UNTIL PAID IN FULL. NOTHING HEREIN SHALL
LIMIT SUCH PURCHASER'S RIGHT TO PURSUE ACTUAL DAMAGES FOR THE PUBLIC INFORMATION
FAILURE, AND SUCH PURCHASER SHALL HAVE THE RIGHT TO PURSUE ALL REMEDIES
AVAILABLE TO IT AT LAW OR IN EQUITY INCLUDING, WITHOUT LIMITATION, A DECREE OF
SPECIFIC PERFORMANCE AND/OR INJUNCTIVE RELIEF.
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 JANUARY 31, 2008; PROVIDED, HOWEVER, THAT SUCH
TERMINATION WILL NOT 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 ENABLE CAPITAL MANAGEMENT, LLC ("ENABLE") THE
NON-ACCOUNTABLE SUM OF $10,000 FOR ITS LEGAL FEES AND EXPENSES, NONE OF WHICH
HAS BEEN PAID PRIOR TO THE CLOSING. THE COMPANY SHALL DELIVER TO EACH PURCHASER,
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