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
7, 2007; 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 $40,000 FOR
ITS LEGAL FEES AND EXPENSES, $20,000 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 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
TO THE PURCHASERS.
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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 TRADING DAY, (B) THE NEXT TRADING 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
TRADING DAY OR LATER THAN 5:30 P.M. (NEW YORK CITY TIME) ON ANY TRADING DAY, (C)
THE SECOND TRADING 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 ON THE SIGNATURE PAGES ATTACHED HERETO.
5.5 AMENDMENTS; WAIVERS.
NO PROVISION OF THIS AGREEMENT MAY BE WAIVED,
MODIFIED, SUPPLEMENTED OR AMENDED EXCEPT IN A WRITTEN INSTRUMENT SIGNED, IN THE
CASE OF AN AMENDMENT, BY THE COMPANY AND THE PURCHASERS OF AT LEAST 85% IN
INTEREST OF THE SECURITIES STILL HELD BY PURCHASERS OR, IN THE CASE OF A WAIVER,
BY THE PARTY AGAINST WHOM ENFORCEMENT OF ANY SUCH WAIVED PROVISION IS SOUGHT.