option plan until such
stock or option plan is duly authorized by a majority of the non-employee
members of the Board of Directors of the Company or a majority of the members of
a committee of non-employee directors established for such purpose.
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
31
CLOSING HAS NOT BEEN CONSUMMATED ON OR BEFORE SEPTEMBER 23, 2005; 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 OMICRON MASTER TRUST ("OMICRON") NON-ACCOUNTABLE SUM OF $45,000, FOR
ITS ACTUAL, REASONABLE, OUT-OF-POCKET LEGAL FEES AND EXPENSES, $20,000 WHICH
SHALL HAVE BEEN PAID PRIOR TO THE CLOSING AND $5,000 WAS PAID IN ADVANCE TO
BRISTOL INVESTMENT FUND, LTD. AS REIMBURSEMENT FOR THE PAYMENT OF BACKGROUND
CHECKS.
ACCORDINGLY, IN LIEU OF THE FOREGOING PAYMENT, THE AGGREGATE AMOUNT
THAT OMICRON IS TO PAY FOR THE SECURITIES AT THE CLOSING SHALL BE REDUCED BY
$20,000.
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
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
REPRESENTATIONS, 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 2ND TRADING DAY FOLLOWING THE DATE OF MAILING,
IF SENT BY U.S. NATIONALLY RECOGNIZED