RAISING TRANSACTION OR SERIES OF RELATED TRANSACTIONS WHICH GRANTS TO
AN INVESTOR THE RIGHT TO RECEIVE ADDITIONAL SHARES BASED UPON FUTURE
TRANSACTIONS OF THE COMPANY ON TERMS MORE FAVORABLE THAN THOSE GRANTED TO THE
SUCH INVESTOR IN SUCH OFFERING.
ARTICLE V
MISCELLANEOUS
5.1
TERMINATION.
THIS AGREEMENT MAY BE TERMINATED BY THE COMPANY OR
ANY PURCHASER, BY WRITTEN NOTICE TO THE OTHER PARTIES, IF THE CLOSING HAS NOT
BEEN CONSUMMATED ON OR BEFORE AUGUST 15, 2004, 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.
THE COMPANY HAS AGREED TO REIMBURSE $10,000 TO
MIDSUMMER CAPITAL, LLC ("MIDSUMMER") (OF WHICH $5,000 HAS BEEN RECEIVED) AS
REIMBURSEMENT FOR ITS LEGAL, ADMINISTRATIVE AND DUE DILIGENCE FEES AND EXPENSES
INCURRED TO PREPARE AND NEGOTIATE THE TRANSACTION DOCUMENTS.
ON THE CLOSING
DATE, THE COMPANY SHALL WIRE $5,000 TO MIDSUMMER AS PAYMENT OF THE REMAINING
PORTION OF THE $10,000 REFERENCED ABOVE.
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 ISSUANCE OF ANY SECURITIES.
24
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 SPECIFIED ON THE SIGNATURE PAGE 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 SPECIFIED IN THIS SECTION ON A DAY THAT IS NOT A TRADING
DAY OR LATER THAN 5:30 P.M. (NEW YORK CITY TIME) ON ANY TRADING DAY,
OR (C) THE
TRADING DAY FOLLOWING THE DATE OF MAILING, IF SENT BY U.S. NATIONALLY RECOGNIZED
OVERNIGHT COURIER SERVICE. THE ADDRESSES FOR SUCH NOTICES AND COMMUNICATIONS ARE
THOSE SET FORTH ON THE SIGNATURE PAGES HEREOF, OR SUCH OTHER ADDRESS AS MAY BE
DESIGNATED IN WRITING HEREAFTER, IN THE SAME MANNER, BY SUCH PERSON.
5.5
AMENDMENTS; WAIVERS.
NO PROVISION OF THIS AGREEMENT MAY BE WAIVED
OR AMENDED EXCEPT IN A WRITTEN INSTRUMENT SIGNED, IN THE CASE OF AN AMENDMENT,
BY THE COMPANY AND EACH OF THE PURCHASERS OR, IN