ex102.htm


    
      Exhibit
10.2

       

      SECURITIES
PURCHASE AGREEMENT

       

      This
Securities Purchase Agreement (this “Agreement”) is dated
as of October 9, 2009, between Beyond Commerce, Inc, a Nevada corporation (the
“Company”), and
Zurvita Holdings, Inc., (the “Purchaser”).

       

      WHEREAS,
concurrently with the execution of this Agreement, the Company is entering into
an asset purchase agreement with OmniReliant Holdings, Inc. (“OmniReliant”),
pursuant to which OmniReliant is acquiring certain software (the “Software”) of the
Company (the “Asset
Purchase Agreement”).

       

      WHEREAS,
immediately following the purchase of the Software by OmniReliant, OmniReliant
is entering into a license agreement with the Purchaser (the “License Agreement”),
pursuant to which OmniRelaint shall grant the Purchaser a license to use the
Software.

       

      WHEREAS,
the Company and the Purchaser are executing and delivering  this
Agreement in reliance upon an exemption from securities registration pursuant to
Section 4(2) and/or Rule 506 of Regulation D ("Regulation  D") as
promulgated by the U.S. Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Securities Act");

       

      WHEREAS,
the parties desire that, upon the terms and subject to the
conditions  contained herein, the Company shall issue and sell to the
Purchaser, as provided herein, and the Purchaser shall  purchase up to
Eight Hundred Thousand Dollars  ($800,000) of shares of the Company's
common stock, of which Three
Hundred  Thousand  Dollars  ($300,000) has been
previously advanced to the Company on behalf of the Purchasers and the closing
upon which will occur on the date hereof (the "First Closing"), Two
Hundred Thousand Dollars ($200,000) shall be funded upon the ability to sell
advertising (the "Second  Closing"),
One Hundred Thousand Dollars  ($100,000) shall be funded on October
23rd,
2009 (the "Third  Closing")
and Two Hundred Thousand Dollars ($200,000) shall be funded on such date as the
entire sales, operational and technical transition has taken place to effectuate
the sales cycle allowing OmniReliant Holdings, Inc. (“OmniReliant”) and the
Purchaser to operate independently on its own platform but, in any evernt, no
later than November 1st 2009
.. (the “Fourth
Closing”) (individually referred to as a "Closing" collectively
referred to as the "Closings"), for a
total purchase price of up to Eight Hundred Thousand Dollars ($800,000), (the
"Purchase Price");

       

      WHEREAS,
as a condition to the purchase of securities by the Purchaser, the Company shall
be required to provide certain support services related to the Software to the
Purchaser subject to the terms and conditions as described in this
Agreement.

       

      NOW,
THEREFORE, IN CONSIDERATION of the mutual covenants contained in this Agreement,
and for other good and valuable consideration the receipt and adequacy of which
are hereby acknowledged, the Company and each Purchaser agree as
follows:

       

      
        
          
          

        

        
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      ARTICLE
I.

       

      DEFINITIONS

       

      1.1 Definitions. In
addition to the terms defined elsewhere in this Agreement, for all purposes of
this Agreement, the following terms have the meanings set forth in this Section
1.1:

       

      “Acquiring Person”
shall have the meaning ascribed to such term in Section 4.5.

       

      “Action” shall have
the meaning ascribed to such term in Section 3.1(j).

       

      “Affiliate” means any
Person that, directly or indirectly through one or more intermediaries, controls
or is controlled by or is under common control with a Person as such terms are
used in and construed under Rule 405 under the Securities Act.

       

       “Board of Directors”
means the board of directors of the Company.

       

      “Business Day” means
any day except Saturday, Sunday, any day which is a federal legal holiday in the
United States or any day on which banking institutions in the State of New York
are authorized or required by law or other governmental action to
close.

       

       “Closings” means the
First Closing, the Second Closing, the Third Closing and the Fourth
Closing.

       

      “Closing Dates” means
the First Closing Date, the Second Closing Date, the Third Closing Date and the
Fourth Closing Date.

       

       “Closing Statement”
means the Closing Statement in the form Annex A attached
hereto.

       

       “Commission” means the
United States Securities and Exchange Commission.

       

      “Common Stock” means
the common stock of the Company, $0.001 par value, and any other class of
securities into which such securities may hereafter be reclassified or changed
into.

       

      “Common Stock
Equivalents” means any securities of the Company or the Subsidiaries
which would entitle the holder thereof to acquire at any time Common Stock,
including, without limitation, any debt, preferred stock, rights, options,
warrants or other instrument that is at any time convertible into or exercisable
or exchangeable for, or otherwise entitles the holder thereof to receive, Common
Stock.

       

      “Company Counsel”
means Sichenzia Ross Friedman Ference LLP, with offices located at 61 Broadway,
New York, New York 10006.

       

      “Disclosure Schedules”
means the Disclosure Schedules of the Company delivered concurrently
herewith.

       

      
        
          
          

        

        
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      “Discussion Time”
shall have the meaning ascribed to such term in Section 3.2(f).

       

      “Escrow Agent” means
Sichenzia Ross Friedman Ference LLP, with offices located at 61 Broadway, New
York, New York 10006.

       

       “Escrow Agreement”
shall mean the Escrow Agreement in substantially the form of Exhibit D hereto
executed and delivered contemporaneously with this Agreement.

       

       “Exchange Act” means
the Securities Exchange Act of 1934, as amended, and the rules and regulations
promulgated thereunder.

      


      “First Closing Date”
means the date first written above.

       

       “First Closing Shares”
means the First Closing Subscription Amount divided by the Per Share Purchase
Price.

       

      “First Closing Subscription
Amount” shall have the meaning ascribed to such term in Section
2.1.

       

      “Fourth Closing Date”
means the date the entire sales, operational and technical transition has taken
place to effectuate the sales cycle allowing OmniReliant and the Purchaser to
operate independently on its own platform but, in any event, no later than
November 1st.

       

      “Fourth Closing
Shares” means the Fourth Closing Subscription Amount divided by the Per
Share Purchase Price.

       

      “Fourth Closing Subscription
Amount” shall have the meaning ascribed to such term in Section
2.1.

       

       “GAAP” shall have the
meaning ascribed to such term in Section 3.1(h).

       

      “Indebtedness” shall
have the meaning ascribed to such term in Section 3.1(aa).

       

       “Intellectual Property
Rights” shall have the meaning ascribed to such term in Section
3.1(o).

       

       “Legend Removal Date”
shall have the meaning ascribed to such term in Section 4.1(c).

       

      “Liens” means a lien,
charge, security interest, encumbrance, right of first refusal, preemptive right
or other restriction.

       

       “Material Adverse
Effect” shall have the meaning assigned to such term in Section
3.1(b).

       

      “Material Permits”
shall have the meaning ascribed to such term in Section 3.1(m).

       

       

      
        
          
          

        

        
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       “Per Share Purchase
Price” equals $0.10, subject to adjustment for reverse and forward stock
splits, stock dividends, stock combinations and other similar transactions of
the Common Stock that occur after the date of this Agreement and before the
Fourth Closing Date.

       

      “Permitted
Indebtedness” means (a) the Indebtedness existing on the date hereof and
set forth on Schedule
3.1(aa) attached hereto, (b) lease obligations and purchase money
indebtedness incurred in connection with the acquisition of capital assets and
lease obligations with respect to newly acquired or leased assets and (c) any
unsecured debt incurred after the date hereof.

      “Permitted Lien” means
the individual and collective reference to the following: (a) Liens for taxes,
assessments and other governmental charges or levies not yet due or Liens for
taxes, assessments and other governmental charges or levies being contested in
good faith and by appropriate proceedings for which adequate reserves (in the
good faith judgment of the management of the Company) have been established in
accordance with GAAP; (b) Liens imposed by law which were incurred in the
ordinary course of the Company’s business, such as carriers’, warehousemen’s and
mechanics’ Liens, statutory landlords’ Liens, and other similar Liens arising in
the ordinary course of the Company’s business, and which (x) do not individually
or in the aggregate materially detract from the value of such property or assets
or materially impair the use thereof in the operation of the business of the
Company and its consolidated Subsidiaries or (y) are being contested in good
faith by appropriate proceedings, which proceedings have the effect of
preventing for the foreseeable future the forfeiture or sale of the property or
asset subject to such Lien; and (c) Liens incurred in connection with Permitted
Indebtedness.

       

      “Person” means an
individual or corporation, partnership, trust, incorporated or unincorporated
association, joint venture, limited liability company, joint stock company,
government (or an agency or subdivision thereof) or other entity of any
kind.

       

       “Proceeding” means an
action, claim, suit, investigation or proceeding (including, without limitation,
an informal investigation or partial proceeding, such as a deposition), whether
commenced or threatened.

       

      “Public Information
Failure” shall have the meaning ascribed to such term in Section
4.2(b).

       

      “Public Information Failure
Payments” shall have the meaning ascribed to such term in Section
4.2(b).

       

       “Purchaser Party”
shall have the meaning ascribed to such term in Section 4.8.

       

       “Required Approvals”
shall have the meaning ascribed to such term in Section 3.1(e).

       

      “Restriction Period”
shall have the meaning ascribed to such term in Section 4.14

       

      “Rule 144” means Rule
144 promulgated by the Commission pursuant to the Securities Act, as such Rule
may be amended from time to time, or any similar rule or regulation hereafter
adopted by the Commission having substantially the same effect as such
Rule.

       

      
        
          
          

        

        
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      “SEC Reports” shall
have the meaning ascribed to such term in Section 3.1(h).

       

       “Second Closing Date”
means the ability of Zurvita to sell advertising.

       

      “Second Closing
Shares” means the Second Closing Subscription Amount divided by the Per
Share Purchase Price.

       

       “Second Closing Subscription
Amount” shall have the meaning ascribed to such term in Section
2.1.

       

       “Securities Act” means
the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder.

       

      “Shares” means the
First Closing Shares, the Seocnd Closing Shares, the Third Closing Shares and
the Fourth Closing Shares.

       

      “Short Sales” means
all “short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act (but shall not be deemed to include the location and/or reservation of
borrowable shares of Common Stock). 

       

       “Subscription Amount”
means collectively, the First Closing Subscription Amount, the Second Closing
Subscription Amount, the Third Closing Subscription Amount and the Fourth
Closing Subscription Amount..

       

      “Subsequent Financing”
shall have the meaning ascribed to such term in Section 4.12(a).

       

      “Subsequent Financing
Notice” shall have the meaning ascribed to such term in Section
4.12(b).

       

      “Subsidiary” means any
subsidiary of the Company as set forth on Schedule 3.1(a), and
shall, where applicable, also include any direct or indirect subsidiary of the
Company formed or acquired after the date hereof.

       

      “Support Period” shall
have the meaning ascribed to such term in Section 4.11.

       

      “Third Closing Date”
means the date October 23, 2009

       

      “Third Closing Shares”
means the Third Closing Subscription Amount divided by the Per Share Purchase
Price.

       

      “Third Closing Subscription
Amount” shall have the meaning ascribed to such term in Section
2.1.

       

       “Trading Day” means a
day on which the New York Stock Exchange is open for trading.

       

       

      
        
          
          

        

        
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      “Trading Market” means
the following markets or exchanges on which the Common Stock is listed or quoted
for trading on the date in question: the American Stock Exchange, the Nasdaq
Capital Market, the Nasdaq Global Market, the Nasdaq Global Select Market, the
New York Stock Exchange or the OTC Bulletin Board.

       

      “Transaction
Documents” means this Agreement, the Escrow Agreement, and any other
documents or agreements executed in connection with the transactions
contemplated hereunder.

       

      “Transfer Agent” means
TranShare  the current transfer agent of the Company, with a mailing
address of 5105 DTC Parkway Suite 325 Greenwood Village, CO 80111and a facsimile
number of (303) 662-1113, and any successor transfer agent of the
Company.

       

      “Variable Rate
Transaction” shall have the meaning ascribed to such term in Section
4.13(b).

       

       “VWAP” means, for any
date, the price determined by the first of the following clauses that applies:
(a) if the Common Stock is then listed or quoted on a Trading Market, the daily
volume weighted average price of the Common Stock for such date (or the nearest
preceding date) on the Trading Market on which the Common Stock is then listed
or quoted for trading as reported by Bloomberg L.P. (based on a Trading Day from
9:30 a.m. (New York City time) to 4:02 p.m. (New York City time); (b)  if
the OTC Bulletin Board is not a Trading Market, the volume weighted average
price of the Common Stock for such date (or the nearest preceding date) on the
OTC Bulletin Board; (c) if the Common Stock is not then listed or quoted for
trading on the OTC Bulletin Board and if prices for the Common Stock are then
reported in the “Pink Sheets” published by Pink Sheets, LLC (or a similar
organization or agency succeeding to its functions of reporting prices), the
most recent bid price per share of the Common Stock so reported; or (d) in
all other cases, the fair market value of a share of Common Stock as determined
by an independent appraiser selected in good faith by the Purchasers of a
majority in interest of the Shares then outstanding and reasonably acceptable to
the Company, the fees and expenses of which shall be paid by the
Company.

       

      ARTICLE
II.

       

      PURCHASE
AND SALE

       

      2.1 Closing.  On
the First Closing Date, upon the terms and subject to the conditions set forth
herein, substantially concurrent with the execution and delivery of this
Agreement by the parties hereto, the Company agrees to sell, and the Purchaser
agrees to purchase, up to an aggregate of Three Hundred Thousand Dollars
$300,000 (the “First
Closing Subscription Amount”) of Shares.  The Company and the
Purchaser hereby acknowledge that funds equal to the First Closing Subscription
Amount have previously been advanced on behalf of the Purchaser to the Company
and on the First Closing Date, the Company shall deliver to the Purchaser its
First Closing Shares, and the Company and the Purchaser shall deliver the other
items set forth in Section 2.2 deliverable at the First Closing.  Upon
satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3,
the First Closing shall occur at the offices of Company Counsel or such other
location as the parties shall mutually agree.  On the Second Closing
Date, upon the terms and subject to the conditions set forth herein, the Company
agrees to sell, and the Purchaser agrees to purchase, up to an aggregate of Two
Hundred Thousand Dollars $200,000 (the “Second Closing Subscription
Amount”) of Shares.  The Purchaser shall deliver to the Company
via wire transfer or a certified check immediately available funds equal to the
Second Closing Subscription Amount and the Company shall deliver to the
Purchaser the Second Closing Shares.  Upon satisfaction of the
covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing
shall occur at the offices of Company Counsel or such other location as the
parties shall mutually agree.  On the Third Closing Date, upon the
terms and subject to the conditions set forth herein, the Company agrees to
sell, and the Purchaser agrees to purchase, up to an aggregate of One Hundred
Thousand Dollars $100,000 (the “Third Closing Subscription
Amount”)of Shares.  The Purchaser shall deliver to the Company
via wire transfer or a certified check immediately available funds equal to the
Third Closing Subscription Amount and the Company shall deliver to the Purchaser
the Third Closing Shares.  Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Third Closing shall occur at
the offices of Company Counsel or such other location as the parties shall
mutually agree.  On the Fourth Closing Date, upon the terms and
subject to the conditions set forth herein, the Company agrees to sell, and the
Purchaser agrees to purchase, up to an aggregate of One Hundred Thousand Dollars
$200,000 (the “Fourth
Closing Subscription Amount”)of Shares.  The Purchaser shall
deliver to the Company via wire transfer or a certified check immediately
available funds equal to the Fourth Closing Subscription Amount and the Company
shall deliver to the Purchaser the Fourth Closing Shares.  Upon
satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3,
the Third Closing shall occur at the offices of Company Counsel or such other
location as the parties shall mutually agree.

       

      
        
          
          

        

        
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      2.2 Deliveries.

       

      (a) On or
prior to the First Closing Date, the Company shall deliver or cause to be
delivered to the Escrow Agent with respect to each Purchaser the
following:

       

      (i) this
Agreement duly executed by the Company;

       

      (ii) waivers
duly executed by each of the parties identified on Schedule
2.2(a)(ii);

       

      (iii) a copy of
the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver, on an expedited basis, a certificate evidencing the First
Closing Shares, registered in the name of the Purchaser;

       

      (iv) a copy of
the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver, on an expedited basis, a certificate evidencing the Second
Closing Shares, registered in the name of the Purchaser, which instructions
shall be held in escrow by the Escrow Agent until the Second Closing, pursuant
to the terms of the Escrow Agreement;

       

      (v) a copy of
the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver, on an expedited basis, a certificate evidencing the Third
Closing Shares, registered in the name of the Purchaser, which instructions
shall be held in escrow by the Escrow Agent until the Third Closing, pursuant to
the terms of the Escrow Agreement;

       

      
        
          
          

        

        
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      (vi) a copy of
the irrevocable instructions to the Transfer Agent instructing the Transfer
Agent to deliver, on an expedited basis, a certificate evidencing the Fourth
Closing Shares, registered in the name of the Purchaser, which instructions
shall be held in escrow by the Escrow Agent until the Fourth Closing, pursuant
to the terms of the Escrow Agreement; and

       

      (vii) the
Escrow Agreement duly executed by the Company.

       

      (b) On or
prior to the First Closing Date, the Purchaser shall deliver or cause to be
delivered to the Escrow Agent the following:

       

      (i) this
Agreement duly executed by the Purchaser;

       

      (ii) the
Escrow Agreement duly executed by the Purchaser; and

       

      (iii) the
Purchaser’s First Closing Subscription Amount by wire transfer to the Escrow
Agent.

       

      (c) On or
prior to the Second Closing Date, the Purchaser shall deliver or cause to be
delivered to the Escrow Agent the Purchaser’s Second Closing Subscription Amount
by wire transfer to the Escrow Agent.

       

      (d) On or
prior to the Third Closing Date, the Purchaser shall deliver or cause to be
delivered to the Escrow Agent the Purchaser’s Third Closing Subscription Amount
by wire transfer to the Escrow Agent.

       

      (e) On or
prior to the Fourth Closing Date, the Purchaser shall deliver or cause to be
delivered to the Escrow Agent the Purchaser’s Fourth Closing Subscription Amount
by wire transfer to the Escrow Agent.

       

      2.3 Closing
Conditions.

       

      (a)           The
obligations of the Company hereunder in connection with each of the the Closings
are subject to the following conditions being met:

       

      (i) the
accuracy in all material respects when made and on each of the Closing Dates of
the representations and warranties of the Purchaser contained
herein;

       

      (ii) all
obligations, covenants and agreements of the Purchaser required to be performed
at or prior to each of the Closing Dates have been performed; and

       

      (iii) the
delivery by the Purchaser of the items set forth in Section 2.2(b), 2.2(c),
2.2(d), and 2.2(e)  of this Agreement.

       

       

      
        
          
          

        

        
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      (b) The
respective obligations of the Purchaser hereunder in connection with each of the
Closings are subject to the following conditions being met:

       

      (i) the
transactions contemplated by the Asset Purchase Agreement shall have been
consummated;

       

      (ii) the
Purchaser shall have entered into the License Agreement with
OmniReliant;

       

      (iii) the
accuracy in all material respects on each of the Closing Dates of the
representations and warranties of the Company contained herein;

       

      (iv) all
obligations, covenants and agreements of the Company required to be performed at
or prior to each of the Closing Dates shall have been performed;

       

      (v) the
delivery by the Company of the items set forth in Section 2.2(a) of this
Agreement;

       

      (vi) as of
each of the Closing Dates, the Company shall have performed its obligations
under Section 4.11 of this Agreement;

       

      (vii) as of
each of the Closing Dates, no event shall be in effect that materially and
adversely effects the (i) legality, validity or enforceability of any
Transaction Document, or (ii) the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document;
andfrom the date hereof to each of the Closing Dates, trading in the Common
Stock shall not have been suspended by the Commission or the Company’s principal
Trading Market (except for any suspension of trading of limited duration agreed
to by the Company, which suspension shall be terminated prior to the Closing),
and, at any time prior to each of the Closing Dates, trading in securities
generally as reported by Bloomberg L.P. shall not have been suspended or
limited, or minimum prices shall not have been established on securities whose
trades are reported by such service, or on any Trading Market, nor shall a
banking moratorium have been declared either by the United States or New York
State authorities nor shall there have occurred any material outbreak or
escalation of hostilities or other national or international calamity of such
magnitude in its effect on, or any material adverse change in, any financial
market which, in each case, in the reasonable judgment of the Purchaser, makes
it impracticable or inadvisable to purchase the Shares at each of the
Closings.

       

      
        
          
          

        

        
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      ARTICLE
III.

       

      REPRESENTATIONS
AND WARRANTIES

       

      3.1 Representations and
Warranties of the Company. Except as set forth in the Disclosure
Schedules, which Disclosure Schedules shall be deemed a part hereof and shall
qualify any representation or otherwise made herein to the extent of the
disclosure contained in the corresponding section of the Disclosure Schedules,
the Company hereby makes the following representations and warranties to each
Purchaser:

       

      (a) Subsidiaries.  All
of the direct and indirect subsidiaries of the Company are set forth on Schedule
3.1(a).  The Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and clear of any
Liens, and all of the issued and outstanding shares of capital stock of each
Subsidiary are validly issued and are fully paid, non-assessable and free of
preemptive and similar rights to subscribe for or purchase
securities.  If the Company has no subsidiaries, then all other
references to the Subsidiaries or any of them in the Transaction Documents shall
be disregarded.

       

      (b) Organization and
Qualification.  The Company and each of the Subsidiaries is an
entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, with the requisite power and authority to own and use its
properties and assets and to carry on its business as currently
conducted.  Neither the Company nor any Subsidiary is in violation nor
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents.  Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, could not
have or reasonably be expected. to result in: (i) a material adverse effect on
the legality, validity or enforceability of any Transaction Document, (ii) a
material adverse effect on the results of operations, assets, business,
prospects or condition (financial or otherwise) of the Company and the
Subsidiaries, taken as a whole, or (iii) a material adverse effect on the
Company’s ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction
revoking, limiting or curtailing or seeking to revoke, limit or curtail such
power and authority or qualification.

       

      (c) Authorization;
Enforcement.  The Company has the requisite corporate power and
authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents and otherwise to carry out its obligations
hereunder and thereunder.  The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby have been duly authorized by all
necessary action on the part of the Company and no further action is required by
the Company, the Board of Directors or the Company’s stockholders in connection
therewith other than in connection with the Required Approvals.  Each
Transaction Document to which it is a party has been (or upon delivery will have
been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with its terms, except: (i)
as limited by general equitable principles and applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors’ rights generally, (ii) as limited by laws
relating to the availability of specific performance, injunctive relief or other
equitable remedies and (iii) insofar as indemnification and contribution
provisions may be limited by applicable law.

       

      
        
          
          

        

        
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      (d) No
Conflicts.  The execution, delivery and performance by the
Company of the Transaction Documents, the issuance and sale of the Securities
and the consummation by it to which it is a party of the other transactions
contemplated hereby and thereby do not and will not: (i) conflict with or
violate any provision of the Company’s or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents,
(ii) conflict with, or constitute a default (or an event that with notice or
lapse of time or both would become a default) under, result in the creation of
any Lien upon any of the properties or assets of the Company or any Subsidiary,
or give to others any rights of termination, amendment, acceleration or
cancellation (with or without notice, lapse of time or both) of, any agreement,
credit facility, debt or other instrument (evidencing a Company or Subsidiary
debt or otherwise) or other understanding to which the Company or any Subsidiary
is a party or by which any property or asset of the Company or any Subsidiary is
bound or affected, or (iii) subject to the Required Approvals, conflict with or
result in a violation of any law, rule, regulation, order, judgment, injunction,
decree or other restriction of any court or governmental authority to which the
Company or a Subsidiary is subject (including federal and state securities laws
and regulations), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as could not have or reasonably be expected to result in a Material
Adverse Effect.

       

      (e) Filings, Consents and
Approvals.  The Company is not required to obtain any consent,
waiver, authorization or order of, give any notice to, or make any filing or
registration with, any court or other federal, state, local or other
governmental authority or other Person in connection with the execution,
delivery and performance by the Company of the Transaction Documents, other
than: (i) the filings required pursuant to Section 4.4 of this Agreement, (ii)
the notice and/or application(s) to each applicable Trading Market for the
issuance and sale of the Securities and the listing of the Securities for
trading thereon in the time and manner required thereby, and (iii) the filing of
Form D with the Commission and such filings as are required to be made under
applicable state securities laws (collectively, the “Required
Approvals”).

       

      (f) Issuance of the
Shares.  The Shares are duly authorized and, when issued and
paid for in accordance with the applicable Transaction Documents, will be duly
and validly issued, fully paid and nonassessable, free and clear of all Liens
imposed by the Company other than restrictions on transfer provided for in the
Transaction Documents.  The Company has reserved from its duly
authorized capital stock the maximum number of shares of Common Stock issuable
pursuant to this Agreement.

       

      
        
          
          

        

        
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      (g) Capitalization.  The
capitalization of the Company is as set forth on Schedule 3.1(g),
which Schedule
3.1(g) shall also include the number of shares of Common Stock owned
beneficially, and of record, by Affiliates of the Company as of the date hereof.
The Company has issued capital stock since its most recently filed periodic
report under the Exchange Act, which is reflected in schedule
3.1(g)  All of the outstanding shares of capital stock of the Company
are validly issued, fully paid and nonassessable, have been issued in compliance
with all federal and state securities laws, and none of such outstanding shares
was issued in violation of any preemptive rights or similar rights to subscribe
for or purchase securities.  No further approval or authorization of
any stockholder, the Board of Directors or others is required for the issuance
and sale of the Securities.  There are no stockholders agreements,
voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the
Company, between or among any of the Company’s stockholders.

       

      (h) SEC Reports; Financial
Statements.  Except as set forth on Schedule 3.1(h), the
Company has filed all reports, schedules, forms, statements and other documents
required to be filed by the Company under the Securities Act and the Exchange
Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years
preceding the date hereof (or such shorter period as the Company was required by
law or regulation to file such material) (the foregoing materials, including the
exhibits thereto and documents incorporated by reference therein, being
collectively referred to herein as the “SEC Reports”) on a
timely basis or has received a valid extension of such time of filing and has
filed any such SEC Reports prior to the expiration of any such
extension.  As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Securities Act and the
Exchange Act, as applicable, and none of the SEC Reports, when filed, contained
any untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.  Except as set forth on Schedule 3.1(h), the
Company has never been an issuer subject to Rule 144(i) under the Securities
Act. The financial statements of the Company included in the SEC Reports comply
in all material respects with applicable accounting requirements and the rules
and regulations of the Commission with respect thereto as in effect at the time
of filing.  Such financial statements have been prepared in accordance
with United States generally accepted accounting principles applied on a
consistent basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated Subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.

       

      (i) Material Changes;
Undisclosed Events, Liabilities or Developments.  Since the
date of the latest audited financial statements included within the SEC Reports,
except as specifically disclosed in a subsequent SEC Report filed prior to the
date hereof: (i) there has been no event, occurrence or development that has had
or that could reasonably be expected to result in a Material Adverse Effect,
(ii) the Company has not incurred any liabilities (contingent or otherwise)
other than (A) trade payables and accrued expenses incurred in the ordinary
course of business consistent with past practice and (B) liabilities not
required to be reflected in the Company’s financial statements pursuant to GAAP
or disclosed in filings made with the Commission, (iii) the Company has not
altered its method of accounting, (iv) the Company has not declared or made any
dividend or distribution of cash or other property to its stockholders or
purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to
any officer, director or Affiliate, except pursuant to existing Company stock
option plans.  The Company does not have pending before the Commission
any request for confidential treatment of information.  Except for the
issuance of the Securities contemplated by this Agreement or as set forth on
Schedule
3.1(i), no event, liability or development has occurred or exists with
respect to the Company or its Subsidiaries or their respective business,
properties, operations or financial condition, that would be required to be
disclosed by the Company under applicable securities laws at the time this
representation is made or deemed made that has not been publicly disclosed at
least 1 Trading Day prior to the date that this representation is
made.

       

      
        
          
          

        

        
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      (j) Litigation.  There
is no action, suit, inquiry, notice of violation, proceeding or investigation
pending or, to the knowledge of the Company, threatened against or affecting the
Company, any Subsidiary or any of their respective properties before or by any
court, arbitrator, governmental or administrative agency or regulatory authority
(federal, state, county, local or foreign) (collectively, an “Action”) which (i)
adversely affects or challenges the legality, validity or enforceability of any
of the Transaction Documents or the Securities or (ii) could, if there were an
unfavorable decision, have or reasonably be expected to result in a Material
Adverse Effect.  Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty.  There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former
director or officer of the Company.  The Commission has not issued any
stop order or other order suspending the effectiveness of any registration
statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.

       

      (k) Compliance.  Neither
the Company nor any Subsidiary: (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including without
limitation all foreign, federal, state and local laws applicable to its business
and all such laws that affect the environment, except in each case as could not
have or reasonably be expected to result in a Material Adverse
Effect.

       

      (l) Regulatory
Permits.  The Company and the Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure
to possess such permits could not reasonably be expected to result in a Material
Adverse Effect (“Material Permits”),
and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any Material
Permit.

       

       

      
        
          
          

        

        
          13

          
            

          

        

        
          
          

        

      

      (m) Title to
Assets.  The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them and good and
marketable title in all personal property owned by them that is material to the
business of the Company and the Subsidiaries, in each case free and clear of all
Liens, except for Liens as do not materially affect the value of such property
and do not materially interfere with the use made and proposed to be made of
such property by the Company and the Subsidiaries and Liens for the payment of
federal, state or other taxes, the payment of which is neither delinquent nor
subject to penalties.  Any real property and facilities held under
lease by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with which the Company and the Subsidiaries
are in compliance.

       

      (n) Patents and
Trademarks.  The Company and the Subsidiaries have, or have
rights to use, all patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses and other intellectual property rights and similar rights as described
in the SEC Reports as necessary or material for use in connection with their
respective businesses and which the failure to so have could have a Material
Adverse Effect (collectively, the “Intellectual Property
Rights”).  Neither the Company nor any Subsidiary has received
a notice (written or otherwise) that any of the Intellectual Property Rights
used by the Company or any Subsidiary violates or infringes upon the rights of
any Person.  To the knowledge of the Company, all such Intellectual
Property Rights are enforceable and there is no existing infringement by another
Person of any of the Intellectual Property Rights.  The Company and
its Subsidiaries have taken reasonable security measures to protect the secrecy,
confidentiality and value of all of their intellectual properties, except where
failure to do so could not, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect.

       

      (o) Insurance.  The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are prudent
and customary in the businesses in which the Company and the Subsidiaries are
engaged, including, but not limited to, directors and officers insurance
coverage at least equal to the aggregate Subscription Amount.  Neither
the Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires
or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost.

       

      
        
          
          

        

        
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      (p) Transactions With Affiliates
and Employees.  Except as set forth in the SEC Reports, none of
the officers or directors of the Company and, to the knowledge of the Company,
none of the employees of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director or such employee or, to the knowledge of the Company, any
entity in which any officer, director, or any such employee has a substantial
interest or is an officer, director, trustee or partner, in each case in excess
of $120,000 other than for: (i) payment of salary or consulting fees for
services rendered, (ii) reimbursement for expenses incurred on behalf of the
Company and (iii) other employee benefits, including stock option agreements
under any stock option plan of the Company.

       

      (q) Sarbanes-Oxley; Internal
Accounting Controls.  The Company is in material compliance
with all provisions of the Sarbanes-Oxley Act of 2002 which are applicable to it
as of the Closing Date.  The Company and the Subsidiaries maintain a
system of internal accounting controls sufficient to provide reasonable
assurance that: (i) transactions are executed in accordance with management’s
general or specific authorizations, (ii) transactions are recorded as necessary
to permit preparation of financial statements in conformity with GAAP and to
maintain asset accountability, (iii) access to assets is permitted only in
accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets is compared with the existing assets at
reasonable intervals and appropriate action is taken with respect to any
differences. The Company has established disclosure controls and procedures (as
defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and
designed such disclosure controls and procedures to ensure that information
required to be disclosed by the Company in the reports it files or submits under
the Exchange Act is recorded, processed, summarized and reported, within the
time periods specified in the Commission’s rules and forms.  The
Company’s certifying officers have evaluated the effectiveness of the Company’s
disclosure controls and procedures as of the end of the period covered by the
Company’s most recently filed periodic report under the Exchange Act (such date,
the “Evaluation
Date”).  The Company presented in its most recently filed
periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date.  Since the Evaluation
Date, there have been no changes in the Company’s internal control over
financial reporting (as such term is defined in the Exchange Act) that has
materially affected, or is reasonably likely to materially affect, the Company’s
internal control over financial reporting.

       

      (r) Certain
Fees.  No brokerage or finder’s fees or commissions are or will
be payable by the Company to any broker, financial advisor or consultant,
finder, placement agent, investment banker, bank or other Person with respect to
the transactions contemplated by the Transaction Documents.  The
Purchasers shall have no obligation with respect to any fees or with respect to
any claims made by or on behalf of other Persons for fees of a type contemplated
in this Section that may be due in connection with the transactions contemplated
by the Transaction Documents.

       

      
        
          
          

        

        
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      (s) Private Placement.
Assuming the accuracy of the Purchasers representations and warranties set forth
in Section 3.2, no registration under the Securities Act is required for the
offer and sale of the Securities by the Company to the Purchasers as
contemplated hereby. The issuance and sale of the Securities hereunder does not
contravene the rules and regulations of the Trading Market.

       

      (t) Investment Company.
The Company is not, and is not an Affiliate of, and immediately after receipt of
payment for the Securities, will not be or be an Affiliate of, an “investment
company” within the meaning of the Investment Company Act of 1940, as
amended.  The Company shall conduct its business in a manner so that
it will not become subject to the Investment Company Act of 1940, as
amended.

       

      (u) Registration
Rights.  Except as set forth in Schedule 3.1(v), no
Person has any right to cause the Company to effect the registration under the
Securities Act of any securities of the Company accept as previously disclosed
in the Company’s SEC filings.

       

      (v) Listing and Maintenance
Requirements.  The Common Stock is registered pursuant to
Section 12(b) or 12(g) of the Exchange Act, and the Company has taken no action
designed to, or which to its knowledge is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act nor has
the Company received any notification that the Commission is contemplating
terminating such registration.  The Company has not, in the 12 months
preceding the date hereof, received notice from any Trading Market on which the
Common Stock is or has been listed or quoted to the effect that the Company is
not in compliance with the listing or maintenance requirements of such Trading
Market. The Company is, and has no reason to believe that it will not in the
foreseeable future continue to be, in compliance with all such listing and
maintenance requirements.

       

      (w) Application of Takeover
Protections.  The Company and the Board of Directors have taken
all necessary action, if any, in order to render inapplicable any control share
acquisition, business combination, poison pill (including any distribution under
a rights agreement) or other similar anti-takeover provision under the Company’s
certificate of incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to the Purchasers as a
result of the Purchasers and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Securities and the
Purchasers’ ownership of the Securities.

       

      
        
          
          

        

        
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      (x) Disclosure.  Except
with respect to the material terms and conditions of the transactions
contemplated by the Transaction Documents, the Company confirms that neither it
nor any other Person acting on its behalf has provided any of the Purchasers or
their agents or counsel with any information that it believes constitutes or
might constitute material, non-public information.   The Company
understands and confirms that the Purchasers will rely on the foregoing
representation in effecting transactions in securities of the
Company.  All disclosure furnished by or on behalf of the Company to
the Purchasers regarding the Company, its business and the transactions
contemplated hereby, including the Disclosure Schedules to this Agreement, is
true and correct and does not contain any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading. The press releases disseminated by the Company during the twelve
months preceding the date of this Agreement taken as a whole do not contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary in order to make the statements therein, in light
of the circumstances under which they were made and when made, not
misleading.  The Company acknowledges and agrees that no Purchaser
makes or has made any representations or warranties with respect to the
transactions contemplated hereby other than those specifically set forth in
Section 3.2 hereof.

       

      (y) No Integrated
Offering. Assuming the accuracy of the Purchasers’ representations and
warranties set forth in Section 3.2, neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf has, directly or
indirectly, made any offers or sales of any security or solicited any offers to
buy any security, under circumstances that would cause this offering of the
Shares to be integrated with prior offerings by the Company for purposes of (i)
the Securities Act which would require the registration of any such securities
under the Securities Act, or (ii) any applicable shareholder approval provisions
of any Trading Market on which any of the securities of the Company are listed
or designated.

       

      (z) Tax
Status.  Except for matters that would not, individually or in
the aggregate, have or reasonably be expected to result in a Material Adverse
Effect, the Company and each Subsidiary has filed all necessary federal, state
and foreign income and franchise tax returns and has paid or accrued all taxes
shown as due thereon, and the Company has no knowledge of a tax deficiency which
has been asserted or threatened against the Company or any
Subsidiary.

       

      (aa) No General
Solicitation.  Neither the Company nor any person acting on
behalf of the Company has offered or sold any of the Securities by any form of
general solicitation or general advertising.  The Company has offered
the Securities for sale only to the Purchasers and certain other “accredited
investors” within the meaning of Rule 501 under the Securities Act.

       

      (bb) Foreign Corrupt
Practices.  Neither the Company, nor to the knowledge of the
Company, any agent or other person acting on behalf of the Company, has: (i)
directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic
political activity, (ii) made any unlawful payment to foreign or domestic
government officials or employees or to any foreign or domestic political
parties or campaigns from corporate funds, (iii) failed to disclose fully any
contribution made by the Company (or made by any person acting on its behalf of
which the Company is aware) which is in violation of law or (iv) violated in any
material respect any provision of the Foreign Corrupt Practices Act of 1977, as
amended.

       

      
        
          
          

        

        
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      (cc) Accountants.  The
Company’s accounting firm is set forth on Schedule 3.1(ee) of
the Disclosure Schedules.  To the knowledge and belief of the Company,
such accounting firm: (i) is a registered public accounting firm as required by
the Exchange Act and (ii) shall express its opinion with respect to the
financial statements to be included in the Company’s Annual Report for the year
ending December 31, 2009.

       

      (dd) No Disagreements with
Accountants and
Lawyers.                                                                                                There
are no disagreements of any kind presently existing, or reasonably anticipated
by the Company to arise, between the Company and the accountants and lawyers
formerly or presently employed by the Company which could affect the Company’s
ability to perform any of its obligations under any of the Transaction
Documents, and the Company is current with respect to any fees owed to its
accountants and lawyers.

       

      (ee)  Acknowledgment Regarding
Purchaser’s Purchase of Shares.  The Company acknowledges and
agrees that the Purchaser is acting solely in the capacity of an arm’s length
purchaser with respect to the Transaction Documents and the transactions
contemplated thereby.  The Company further acknowledges that the
Purchaser is not acting as a financial advisor or fiduciary of the Company (or
in any similar capacity) with respect to the Transaction Documents and the
transactions contemplated thereby and any advice given by the Purchaser or any
of the Purchasser’s representatives or agents in connection with the Transaction
Documents and the transactions contemplated thereby is merely incidental to the
Purchaser’s purchase of the Shares.  The Company further represents to
the Purchaser that the Company’s decision to enter into this Agreement and the
other Transaction Documents has been based solely on the independent evaluation
of the transactions contemplated hereby by the Company and its
representatives.

       

      (ff) Acknowledgment
Regarding Purchaser’s Trading Activity.  Anything in this Agreement or elsewhere
herein to the contrary notwithstanding (except for Sections 3.2(f) and 4.15
hereof), it is understood and acknowledged by the Company that: (i) the
Purchaser has not been asked to agree by the Company, nor has the Purchaser
agreed, to desist from purchasing or selling, long and/or short, securities of
the Company, or “derivative” securities based on securities issued by the
Company or to hold the Shares for any specified term, (ii) past or future open
market or other transactions by any Purchaser, specifically including, without
limitation, Short Sales or “derivative” transactions, before or after the
closing of this or future private placement transactions, may negatively impact
the market price of the Company’s publicly-traded securities, (iii) the
Purchaser, and counter-parties in “derivative” transactions to which the
Purchaser is a party, directly or indirectly, may presently have a “short”
position in the Common Stock and (iv) the Purchaser shall not be deemed to have
any affiliation with or control over any arm’s length counter-party in any
“derivative” transaction.

       

      
        
          
          

        

        
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      (gg) Regulation M
Compliance.  The Company has not, and to its knowledge no one acting
on its behalf has, (i) taken, directly or indirectly, any action designed to
cause or to result in the stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of any of the Shares,
(ii) sold, bid for, purchased, or, paid any compensation for soliciting
purchases of, any of the securities of the Company, or (iii) paid or agreed to
pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii),
compensation paid to the Company’s placement agent in connection with the
placement of the Shares.

       

      (hh) Stock Option Plans.
Each stock option granted by the Company under the Company’s stock option plan
was granted (i) in accordance with the terms of the Company’s stock option plan
and (ii) with an exercise price at least equal to the fair market value of the
Common Stock on the date such stock option would be considered granted under
GAAP and applicable law. No stock option granted under the Company’s stock
option plan has been backdated.  The Company has not knowingly
granted, and there is no and has been no Company policy or practice to knowingly
grant, stock options prior to, or otherwise knowingly coordinate the grant of
stock options with, the release or other public announcement of material
information regarding the Company or its Subsidiaries or their financial results
or prospects.

       

      3.2 Representations and
Warranties of the Purchasers.  Each Purchaser, for itself and
for no other Purchaser, hereby represents and warrants as of the date hereof and
as of each of the Closing Dates to the Company as follows:

       

      (a) Organization;
Authority.  Such Purchaser is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority to
enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of the Transaction Documents and performance by such
Purchaser of the transactions contemplated by the Transaction Documents have
been duly authorized by all necessary corporate or similar action on the part of
such Purchaser.  Each Transaction Document to which it is a party has
been duly executed by such Purchaser, and when delivered by such Purchaser in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Purchaser, enforceable against it in accordance with its
terms, except: (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.

       

      (b) Own
Account.  Such Purchaser understands that the Shares are
“restricted securities” and have not been registered under the Securities Act or
any applicable state securities law and is acquiring the Shares as principal for
its own account and not with a view to or for distributing or reselling such
Shares or any part thereof in violation of the Securities Act or any applicable
state securities law, has no present intention of distributing any of such
Shares in violation of the Securities Act or any applicable state securities law
and has no direct or indirect arrangement or understandings with any other
persons to distribute or regarding the distribution of such Shares (this
representation and warranty not limiting such Purchaser’s right to sell the
Shares in compliance with applicable federal and state securities laws) in
violation of the Securities Act or any applicable state securities
law.  Such Purchaser is acquiring the Shares hereunder in the ordinary
course of its business.

      
        
          
          

        

        
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      (c) Purchaser
Status.  At the time such Purchaser was offered the Shares, it
was, and as of the date hereof it is, either: (i) an “accredited investor” as
defined in Rule 501(a)(1), (a)(2), (a)(3), (a)(7) or (a)(8) under the Securities
Act or (ii) a “qualified institutional buyer” as defined in Rule 144A(a) under
the Securities Act.  Such Purchaser is not required to be registered
as a broker-dealer under Section 15 of the Exchange Act.

       

      (d) Experience of Such
Purchaser.  Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Shares, and has so evaluated the merits and
risks of such investment.  Such Purchaser is able to bear the economic
risk of an investment in the Shares and, at the present time, is able to afford
a complete loss of such investment.

       

      (e) General
Solicitation.  Such Purchaser is not purchasing the Shares as a
result of any advertisement, article, notice or other communication regarding
the Shares published in any newspaper, magazine or similar media or broadcast
over television or radio or presented at any seminar or any other general
solicitation or general advertisement.

       

      (f) Short Sales and
Confidentiality Prior To The Date Hereof.  Other than
consummating the transactions contemplated hereunder, such Purchaser has not,
nor has any Person acting on behalf of or pursuant to any understanding with
such Purchaser, directly or indirectly executed any purchases or sales,
including Short Sales, of the securities of the Company during the period
commencing from the time that such Purchaser first received a term sheet
(written or oral) from the Company or any other Person representing the Company
setting forth the material terms of the transactions contemplated hereunder
until the date hereof (“Discussion Time”).  Notwithstanding
the foregoing, in the case of a Purchaser that is a multi-managed investment
vehicle whereby separate portfolio managers manage separate portions of such
Purchaser’s assets and the portfolio managers have no direct knowledge of the
investment decisions made by the portfolio managers managing other portions of
such Purchaser’s assets, the representation set forth above shall only apply
with respect to the portion of assets managed by the portfolio manager that made
the investment decision to purchase the Shares covered by this
Agreement.  Other than to other Persons party to this Agreement, such
Purchaser has maintained the confidentiality of all disclosures made to it in
connection with this transaction (including the existence and terms of this
transaction).

       

      ARTICLE
IV.

       

      OTHER
AGREEMENTS OF THE PARTIES

       

      4.1 Transfer
Restrictions.

       

      (a) The
Shares may only be disposed of in compliance with state and federal securities
laws.  In connection with any transfer of Shares other than pursuant
to an effective registration statement or Rule 144, to the Company or to an
Affiliate of a Purchaser or in connection with a pledge as contemplated in
Section 4.1(b), the Company may require the transferor thereof to provide to the
Company an opinion of counsel selected by the transferor and reasonably
acceptable to the Company, the form and substance of which opinion shall be
reasonably satisfactory to the Company, to the effect that such transfer does
not require registration of such transferred Shares under the Securities
Act.  As a condition of transfer, any such transferee shall agree in
writing to be bound by the terms of this Agreement and shall have the rights of
a Purchaser under this Agreement.

       

      
        
          
          

        

        
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      (b) The
Purchasers agree to the imprinting, so long as is required by this Section 4.1,
of a legend on any of the Shares in the following form:

       

      THIS
SECURITY HAS NOT BEEN  REGISTERED WITH THE SECURITIES AND EXCHANGE
COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO
AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.  THIS SECURITY MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT WITH A REGISTERED BROKER-DEALER OR OTHER LOAN
WITH A FINANCIAL INSTITUTION THAT IS AN “ACCREDITED INVESTOR” AS DEFINED IN RULE
501(a) UNDER THE SECURITIES ACT OR OTHER LOAN SECURED BY SUCH
SECURITIES.

       

      The
Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or
grant a security interest in some or all of the Shares to a financial
institution that is an “accredited investor” as defined in Rule 501(a) under the
Securities Act and who agrees to be bound by the provisions of this Agreement
and, if required under the terms of such arrangement, such Purchaser may
transfer pledged or secured Shares to the pledgees or secured
parties.  Such a pledge or transfer would not be subject to approval
of the Company and no legal opinion of legal counsel of the pledgee, secured
party or pledgor shall be required in connection therewith.  Further,
no notice shall be required of such pledge.  At the appropriate
Purchaser’s expense, the Company will execute and deliver such reasonable
documentation as a pledgee or secured party of Shares may reasonably request in
connection with a pledge or transfer of the Shares.

       

      
        
          
          

        

        
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      (c) Certificates
evidencing the Shares shall not contain any legend (including the legend set
forth in Section 4.1(b) hereof), (i) while a registration statement covering the
resale of such security is effective under the Securities Act, (ii) following
any sale of such Shares pursuant to Rule 144, (iii) if such Shares are eligible
for sale under Rule 144, without the requirement for the Company to be in
compliance with the current public information required under Rule 144 as to
such Underlying Shares and without volume or manner-of-sale restrictions, or
(iv) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by
the staff of the Commission).  The Company shall cause its counsel to
issue a legal opinion to the Transfer Agent if required by the Transfer Agent to
effect the removal of the legend hereunder.  The Company agrees that
at such time as such legend is no longer required under this Section 4.1(c), it
will, no later than three Trading Days following the delivery by a Purchaser to
the Company or the Transfer Agent of a certificate representing Shares issued
with a restrictive legend (such third Trading Day, the “Legend Removal
Date”), deliver or cause to be delivered to such Purchaser a certificate
representing such shares that is free from all restrictive and other
legends.  The Company may not make any notation on its records or give
instructions to the Transfer Agent that enlarge the restrictions on transfer set
forth in this Section 4.  Certificates for Shares subject to legend
removal hereunder shall be transmitted by the Transfer Agent to the Purchaser by
crediting the account of the Purchaser’s prime broker with the Depository Trust
Company System as directed by such Purchaser.

      


      (d) 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, for
each $1,000 of Shares (based on the VWAP of the Common Stock on the date such
Shares are submitted to the Transfer Agent) delivered for removal of the
restrictive legend and subject to Section 4.1(c), $10 per Trading Day
(increasing to $20 per Trading Day five (5) Trading Days after such damages have
begun to accrue) for each Trading Day after the Legend Removal Date until such
certificate is delivered without a legend. Nothing herein shall limit such
Purchaser’s right to pursue actual damages for the Company’s failure to deliver
certificates representing any Shares as required by the Transaction Documents,
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.

       

      (e) Each
Purchaser, severally and not jointly with the other Purchasers, agrees that such
Purchaser will sell any Shares pursuant to either the registration requirements
of the Securities Act, including any applicable prospectus delivery
requirements, or an exemption therefrom, and that if Shares are sold pursuant to
an effective registration statement, they will be sold in compliance with the
plan of distribution set forth therein, and acknowledges that the removal of the
restrictive legend from certificates representing Shares as set forth in this
Section 4.1 is predicated upon the Company’s reliance upon this
understanding.

       

      
        
          
          

        

        
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      4.2 Furnishing of Information;
Public Information.

       

      (a) If the
Common Stock is not registered under Section 12(b) or 12(g) of the Exchange Act
on the date hereof, the Company agrees to cause the Common Stock to be
registered under Section 12(g) of the Exchange Act on or before the 60th
calendar day following the date hereof. Until the time that no Purchaser owns
Shares, the Company covenants to maintain the registration of the Common Stock
under Section 12(b) or 12(g) of the Exchange Act and to timely file (or obtain
extensions in respect thereof and file within the applicable grace period) all
reports required to be filed by the Company after the date hereof pursuant to
the Exchange Act.  As long as any Purchaser owns Shares, if the
Company is not required to file reports pursuant to the Exchange Act, it will
prepare and furnish to the Purchasers and make publicly available in accordance
with Rule 144(c) such information as is required for the Purchasers to sell the
Shares under Rule 144. The Company further covenants that it will take such
further action as any holder of Shares may reasonably request, to the extent
required from time to time to enable such Person to sell such Shares without
registration under the Securities Act within the requirements of the exemption
provided by Rule 144.

       

      (b) At any
time during the period commencing from the six (6) month anniversary of the date
hereof and ending at such time that all of the Shares may be 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 Shares, an amount in cash equal to two percent (2.0%) of the aggregate
Subscription Amount of such Purchaser’s Shares 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 4.2(b) 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 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.

       

      4.3 Integration.  The
Company shall not sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Shares to the
Purchasers in a manner that would require the registration under the Securities
Act of the sale of the Shares to the Purchasers or that would be integrated with
the offer or sale of the Shares to the Purchasers for purposes of the rules and
regulations of any Trading Market such that it would require shareholder
approval prior to the closing of such other transaction unless shareholder
approval is obtained before the closing of such subsequent
transaction.

       

      
        
          
          

        

        
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      4.4 Securities Laws Disclosure;
Publicity.  The Company shall, by 5:30 p.m. (New York City
time) within four (4) days following the date hereof, issue a Current Report on
Form 8-K, disclosing the material terms of the transactions contemplated hereby,
and including the Transaction Documents as exhibits thereto.  The
Company and each Purchaser shall consult with each other in issuing any other
press releases with respect to the transactions contemplated hereby, and neither
the Company nor any Purchaser shall issue any such press release nor otherwise
make any such public statement without the prior consent of the Company, with
respect to any press release of any Purchaser, or without the prior consent of
each Purchaser, with respect to any press release of the Company, which consent
shall not unreasonably be withheld or delayed, except if such disclosure is
required by law, in which case the disclosing party shall promptly provide the
other party with prior notice of such public statement or
communication.  Notwithstanding the foregoing, the Company shall not
publicly disclose the name of any Purchaser, or include the name of any
Purchaser in any filing with the Commission or any regulatory agency or Trading
Market, without the prior written consent of such Purchaser, except (a) as
required by federal securities law in connection with the filing of final
Transaction Documents (including signature pages thereto) with the Commission
and (b) to the extent such disclosure is required by law or Trading Market
regulations, in which case the Company shall provide the Purchasers with prior
notice of such disclosure permitted under this clause (b).

       

      4.5 Shareholder Rights
Plan.  No claim will be made or enforced by the Company or,
with the consent of the Company, any other Person, that any Purchaser is an
“Acquiring Person” under any control share acquisition, business combination,
poison pill (including any distribution under a rights agreement) or similar
anti-takeover plan or arrangement in effect or hereafter adopted by the Company,
or that any Purchaser could be deemed to trigger the provisions of any such plan
or arrangement, by virtue of receiving Shares under the Transaction Documents or
under any other agreement between the Company and the Purchasers.

       

      4.6 Non-Public
Information.  Except with respect to the material terms and
conditions of the transactions contemplated by the Transaction Documents, the
Company covenants and agrees that neither it, nor any other Person acting on its
behalf, will provide any Purchaser or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto such Purchaser shall have executed a written agreement regarding
the confidentiality and use of such information.  The Company
understands and confirms that each Purchaser shall be relying on the foregoing
covenant in effecting transactions in securities of the Company.

       

      4.7 Use of
Proceeds.  Except as set forth on Schedule 4.7 attached
hereto, the Company shall use the net proceeds from the sale of the Shares
hereunder for working capital purposes and shall not use such proceeds for: (a)
the satisfaction of any portion of the Company’s debt (other than payment of
trade payables in the ordinary course of the Company’s business and prior
practices), (b) the redemption of any Common Stock or Common Stock Equivalents
or (c) the settlement of any outstanding litigation.

       

      
        
          
          

        

        
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      4.8 Indemnification of
Purchasers.   Subject to the provisions of this Section
4.8, the Company will indemnify and hold each Purchaser and its directors,
officers, shareholders, members, partners, employees and agents (and any other
Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), each Person who
controls such Purchaser (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, shareholders,
agents, members, partners or employees (and any other Persons with a
functionally equivalent role of a Person holding such titles notwithstanding a
lack of such title or any other title) of such controlling persons (each, a
“Purchaser
Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation that any such Purchaser Party may suffer or incur as a
result of or relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement or in
the other Transaction Documents or (b) any action instituted against a Purchaser
in any capacity, or any of them or their respective Affiliates, by any
stockholder of the Company who is not an Affiliate of such Purchaser, with
respect to any of the transactions contemplated by the Transaction Documents
(unless such action is based upon a breach of such Purchaser’s representations,
warranties or covenants under the Transaction Documents or any agreements or
understandings such Purchaser may have with any such stockholder or any
violations by the Purchaser of state or federal securities laws or any conduct
by such Purchaser which constitutes fraud, gross negligence, willful misconduct
or malfeasance).  If any action shall be brought against any Purchaser
Party in respect of which indemnity may be sought pursuant to this Agreement,
such Purchaser Party shall promptly notify the Company in writing, and the
Company shall have the right to assume the defense thereof with counsel of its
own choosing reasonably acceptable to the Purchaser Party.  Any
Purchaser Party shall have the right to employ separate counsel in any such
action and participate in the defense thereof, but the fees and expenses of such
counsel shall be at the expense of such Purchaser Party except to the extent
that (i) the employment thereof has been specifically authorized by the Company
in writing, (ii) the Company has failed after a reasonable period of time to
assume such defense and to employ counsel or (iii) in such action there is, in
the reasonable opinion of such separate counsel, a material conflict on any
material issue between the position of the Company and the position of such
Purchaser Party, in which case the Company shall be responsible for the
reasonable fees and expenses of no more than one such separate
counsel.  The Company will not be liable to any Purchaser Party under
this Agreement (y) for any settlement by a Purchaser Party effected without the
Company’s prior written consent, which shall not be unreasonably withheld or
delayed; or (z) to the extent, but only to the extent that a loss, claim, damage
or liability is attributable to any Purchaser Party’s breach of any of the
representations, warranties, covenants or agreements made by such Purchaser
Party in this Agreement or in the other Transaction Documents.

       

      4.9 Reservation of Common
Stock. As of the date hereof, the Company has reserved and the Company
shall continue to reserve and keep available at all times, free of preemptive
rights, a sufficient number of shares of Common Stock for the purpose of
enabling the Company to issue Shares pursuant to this Agreement.

       

      4.10 Listing
of Common Stock. The Company hereby agrees to use best efforts to maintain the
listing of the Common Stock on a Trading Market, and as soon as reasonably
practicable following the First Closing (but not later than the first
anniversary of the First Closing Date) to list all of the Shares on such Trading
Market. The Company further agrees, if the Company applies to have the Common
Stock traded on any other Trading Market, it will then include in such
application all of the Shares, and will take such other action as is necessary
to cause all of the Shares to be listed on such other Trading Market as promptly
as possible.  The Company will then take all action reasonably
necessary to continue the listing and trading of its Common Stock on a Trading
Market and will comply in all respects with the Company’s reporting, filing and
other obligations under the bylaws or rules of the Trading Market.

       

      
        
          
          

        

        
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      4.11 Software Support Services
The Company will train the Purchaser’s employees and consultants to
manage the Software platform along with all relevant functions which allow the
Purchaser to sell ads and manage the entire Software platform and processes
independently while working out of the Company’s main offices.  (i)The
Company will begin to cover any direct costs associated with managing the
technical platform until November 13th,
2009. or (ii) until such time as the Purchaser is able to manage the Software
platform along with all relevant functions that allow it to independently sell
ads (the “Support Period”)  These direct costs will include, and not
be to limited items such as the server farm, ByDesign, iCentris CRM,
etc.)  The Company will continue to provide headcount support for the
initial one hundred twenty (120) days of the First Closing, or until such time
as the Purchaser and the Company have exercised one of the options noted
below:

       

      (a) Commencing
on the Initial Closing Date and continuing for a period of thirty (30) calendar
days, the Company will provide the Purchaser with support services (the “Support
Period”).  Upon the expiration of the Support Period, the
Purchaser and the Company will mutually decide to either (1) enter into a
support agreement whereby the Purchaser would pay the Company $6.50 per
user/customer in exchange for managing the back-end operations, with a reduction
in incremental cost to $4.00 per user/customer upon the Purchaser reaching
50,001 users or (2) the Company will train employees compensated by the
Purchaser to manage the back-end CRM systems while working out of the Company’s
main offices.

       

      4.12 Reserved.

       

      4.13 Reserved.

       

      4.14 Reserved.

       

      4.15 Form D; Blue Sky
Filings.  The Company agrees to timely file a Form D with
respect to the Shares as required under Regulation D and to provide a copy
thereof, promptly upon request of any Purchaser. The Company shall take such
action as the Company shall reasonably determine is necessary in order to obtain
an exemption for, or to qualify the Securities for, sale to the Purchasers at
the Closing under applicable securities or “Blue Sky” laws of the states of the
United States, and shall provide evidence of such actions promptly upon request
of any Purchaser.

       

      4.16 Reserved

       

      4.17 Delivery of Shares After
Closing.  The Company shall deliver, or cause to be delivered,
the Shares purchased by the Purchaser to such Purchaser within 3 Trading Days of
each of the Closing Date.

       

      4.18 Reserved.

       

      4.19 Reserved.

       

      
        
          
          

        

        
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      ARTICLE
V.

       

      MISCELLANEOUS

       

      5.1 Termination. 
This Agreement may be terminated by any Party, as to such parties’ 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
Fourth Closing has not been consummated; 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.  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.

       

      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 2nd
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 Purchaser or, in the case of a
waiver, by the party against whom enforcement of any such waived provision is
sought.  No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of any party to exercise any right hereunder in any manner impair the
exercise of any such right.

       

      
        
          
          

        

        
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      5.6 Headings.  The
headings herein are for convenience only, do not constitute a part of this
Agreement and shall not be deemed to limit or affect any of the provisions
hereof.

       

      5.7 Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns.  The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of each Purchaser (other
than by merger).  Any Purchaser may assign any or all of its rights
under this Agreement to any Person to whom such Purchaser assigns or transfers
any Securities, provided that such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions of the Transaction
Documents that apply to the “Purchasers.”

       

      5.8 No Third-Party
Beneficiaries.  This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.8.

       

      5.9 Governing
Law.  All questions concerning the construction, validity,
enforcement and interpretation of the Transaction Documents shall be governed by
and construed and enforced in accordance with the internal laws of the State of
New York, without regard to the principles of conflicts of law
thereof.  Each party agrees that all legal proceedings concerning the
interpretations, enforcement and defense of the transactions contemplated by
this Agreement and any other Transaction Documents (whether brought against a
party hereto or its respective affiliates, directors, officers, shareholders,
employees or agents) shall be commenced exclusively in the state and federal
courts sitting in the City of New York. Each party hereby irrevocably submits to
the exclusive jurisdiction of the state and federal courts sitting in the City
of New York, borough of Manhattan for the adjudication of any dispute hereunder
or in connection herewith or with any transaction contemplated hereby or
discussed herein (including with respect to the enforcement of any of the
Transaction Documents), and hereby irrevocably waives, and agrees not to assert
in any suit, action or proceeding, any claim that it is not personally subject
to the jurisdiction of any such court, that such suit, action or proceeding is
improper or is an inconvenient venue for such proceeding.  Each party
hereby irrevocably waives personal service of process and consents to process
being served in any such suit, action or proceeding by mailing a copy thereof
via registered or certified mail or overnight delivery (with evidence of
delivery) to such party at the address in effect for notices to it under this
Agreement and agrees that such service shall constitute good and sufficient
service of process and notice thereof.  Nothing contained herein shall
be deemed to limit in any way any right to serve process in any other manner
permitted by law.  If either party shall commence an action or
proceeding to enforce any provisions of the Transaction Documents, then the
prevailing party in such action or proceeding shall be reimbursed by the other
party for its reasonable attorneys’ fees and other costs and expenses incurred
with the investigation, preparation and prosecution of such action or
proceeding.

       

      5.10 Survival.  The
representations and warranties shall survive the Closing and the delivery of the
Shares for the applicable statute of limitations.

       

       

      
        
          
          

        

        
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      5.11 Execution.  This
Agreement may be executed in two or more counterparts, all of which when taken
together shall be considered one and the same agreement and shall become
effective when counterparts have been signed by each party and delivered to the
other party, it being understood that both parties need not sign the same
counterpart.  In the event that any signature is delivered by
facsimile transmission or by e-mail delivery of a “.pdf” format data file, such
signature shall create a valid and binding obligation of the party executing (or
on whose behalf such signature is executed) with the same force and effect as if
such facsimile or “.pdf” signature page were an original thereof.

       

      5.12 Severability.  If
any term, provision, covenant or restriction of this Agreement is held by a
court of competent jurisdiction to be invalid, illegal, void or unenforceable,
the remainder of the terms, provisions, covenants and restrictions set forth
herein shall remain in full force and effect and shall in no way be affected,
impaired or invalidated, and the parties hereto shall use their commercially
reasonable efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, illegal, void or unenforceable.

       

      5.13 Rescission and Withdrawal
Right.  Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) any of the other Transaction
Documents, whenever any Purchaser exercises a right, election, demand or option
under a Transaction Document and the Company does not timely perform its related
obligations within the periods therein provided, then such Purchaser may rescind
or withdraw, in its sole discretion from time to time upon written notice to the
Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights.

       

      5.14 Replacement of
Shares.  If any certificate or instrument evidencing any Shares
is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be
issued in exchange and substitution for and upon cancellation thereof (in the
case of mutilation), or in lieu of and substitution therefor, a new certificate
or instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction.  The applicant for a new
certificate or instrument under such circumstances shall also pay any reasonable
third-party costs (including customary indemnity) associated with the issuance
of such replacement Shares.

       

      5.15 Remedies.  In
addition to being entitled to exercise all rights provided herein or granted by
law, including recovery of damages, the Purchaser and the Company will be
entitled to specific performance under the Transaction Documents.  The
parties agree that monetary damages may not be adequate compensation for any
loss incurred by reason of any breach of obligations contained in the
Transaction Documents and hereby agrees to waive and not to assert in any action
for specific performance of any such obligation the defense that a remedy at law
would be adequate.

       

      
        
          
          

        

        
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      5.16 Payment Set
Aside.  To the extent that the Company makes a payment or
payments to the Purchaser pursuant to any Transaction Document or the Purchaser
enforces or exercises its rights thereunder, and such payment or payments or the
proceeds of such enforcement or exercise or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside, recovered
from, disgorged by or are required to be refunded, repaid or otherwise restored
to the Company, a trustee, receiver or any other person under any law
(including, without limitation, any bankruptcy law, state or federal law, common
law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof originally intended to be satisfied shall be
revived and continued in full force and effect as if such payment had not been
made or such enforcement or setoff had not occurred.

       

      5.17 Reserved.

       

      5.18 Liquidated
Damages.  The Company’s obligations to pay any partial
liquidated damages or other amounts owing under the Transaction Documents is a
continuing obligation of the Company and shall not terminate until all unpaid
partial liquidated damages and other amounts have been paid notwithstanding the
fact that the instrument or security pursuant to which such partial liquidated
damages or other amounts are due and payable shall have been
canceled.

       

      5.19 Saturdays, Sundays,
Holidays,
etc.                                                                If
the last or appointed day for the taking of any action or the expiration of any
right required or granted herein shall not be a Business Day, then such action
may be taken or such right may be exercised on the next succeeding Business
Day.

       

      5.20 Construction. The
parties agree that each of them and/or their respective counsel has reviewed and
had an opportunity to revise the Transaction Documents and, therefore, the
normal rule of construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the interpretation
of the Transaction Documents or any amendments hereto.

       

      5.21 WAIVER OF JURY
TRIAL.  IN ANY ACTION, SUIT, OR
PROCEEDING IN ANY JURISDICTION BROUGHT BY ANY PARTY AGAINST ANY OTHER PARTY, THE
PARTIES EACH KNOWINGLY AND INTENTIONALLY, TO THE GREATEST EXTENT PERMITTED BY
APPLICABLE LAW, HEREBY ABSOLUTELY, UNCONDITIONALLY, IRREVOCABLY AND EXPRESSLY
WAIVES FOREVER TRIAL BY JURY.

       

      


       

      (Signature
Pages Follow)

       

      
        
          
          

        

        
          30

          
            

          

        

        
          
          

        

      

      


       

      IN
WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
Agreement to be duly executed by their respective authorized signatories as of
the date first indicated above.

       

      


      
        	
                BEYOND
      COMMERCE, INC.

                 

                 

              	
                Address
      for Notice:

                 

              
	
                By:__________________________________________

                     Name:
      Robert J McNulty

                     Title:
      Chief Executive Officer

                With
      a copy to (which shall not constitute notice):

              	
                Fax:

                 

                 

              
	 
      	
                DARRIN
      M. OCASIO

                Sichenzia
      Ross Friedman Ference LLP

                61
      Broadway, New York, New York 10006

                Fax
      (212 ) 930-9725

              


      

      


      


      


      


      
        
          
          

        

        
          31

          
            

          

        

        
          
          

        

      

      


       

      


      


      [REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK

      SIGNATURE
PAGE FOR PURCHASER FOLLOWS]

       [PURCHASER
SIGNATURE PAGES TO BYOC SECURITIES PURCHASE AGREEMENT]

      


      FIRST
CLOSING

      


      IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of
_____________, 2009.

       

      Name of
Purchaser: Zurvita Holdings, Inc.

      Signature of Authorized Signatory of
Purchaser: __________________________________

      Name of
Authorized Signatory: Jay Shafer

      Title of
Authorized Signatory: Co-Chief Executive Officer

      Email
Address of Authorized Signatory: jay.shafer@amacoregroup.com

      Facsimile
Number of Authorized Signatory: 321-304-4502

      Address
for Notice of Purchaser:

      485 N.
Keller Road, Suite 450

      Maitland,
Florida 32751

      


      


      Address
for Delivery of Securities for Purchaser (if not same as address for
notice):

      


      


      


      


      


      Subscription
Amount: $300,000.00

      


      Shares:
3,000,000

      


      EIN
Number:  [PROVIDE
THIS UNDER SEPARATE COVER]

       

       

      
        
          
          

        

        
          32

          
            

          

        

        
          
          

        

      

       

      [PURCHASER
SIGNATURE PAGES TO BYOC SECURITIES PURCHASE AGREEMENT]

      


      SECOND
CLOSING

      


      IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of
______________, 2009.

       

      Name of
Purchaser: Zurvita Holdings, Inc.

      Signature of Authorized Signatory of
Purchaser: __________________________________

      Name of
Authorized Signatory: Jay Shafer

      Title of
Authorized Signatory: Co-Chief Executive Officer

      Email
Address of Authorized Signatory: jay.shafer@amacoregroup.com

      Facsimile
Number of Authorized Signatory: 321-304-4502

      Address
for Notice of Purchaser:

      485 N.
Keller Road, Suite 450

      Maitland,
Florida 32751

      


      


      Address
for Delivery of Securities for Purchaser (if not same as address for
notice):

      


      


      


      


      


      Subscription
Amount: $200,000.00

      


      Shares:
2,000,000

      


      EIN
Number:  [PROVIDE
THIS UNDER SEPARATE COVER]

       

       

      
        
          
          

        

        
          33

          
            

          

        

        
          
          

        

      

       

      [PURCHASER
SIGNATURE PAGES TO BYOC SECURITIES PURCHASE AGREEMENT]

      


      THIRD
CLOSING

      


      IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of
____________, 2009.

       

      Name of
Purchaser:
___________________________________________________________

      Signature of Authorized Signatory of
Purchaser: ____________________________________

      Name of
Authorized Signatory:
____________________________________________________

      Title of
Authorized Signatory:
_____________________________________________________

      Email
Address of Authorized Signatory:
______________________________________________

      Facsimile
Number of Authorized Signatory:
___________________________________________

      Address
for Notice of Purchaser:

      


      


      


      


      Address
for Delivery of Securities for Purchaser (if not same as address for
notice):

      


      


      


      


      


      Subscription
Amount: $100,000

      


      Shares:
1,000,000

      


      EIN
Number:  [PROVIDE
THIS UNDER SEPARATE COVER]

       

      
        
          
          

        

        
          34

          
            

          

        

        
          
          

        

      

       

      [PURCHASER
SIGNATURE PAGES TO BYOC SECURITIES PURCHASE AGREEMENT]

      


      FOURTH
CLOSING

      


      IN
WITNESS WHEREOF, the undersigned have caused this Securities Purchase Agreement
to be duly executed by their respective authorized signatories as of
__________________, 2009.

       

      Name of
Purchaser:
__________________________________________________________

      Signature of Authorized Signatory of
Purchaser: ____________________________________

      Name of
Authorized Signatory:
___________________________________________________

      Title of
Authorized Signatory:
_____________________________________________________

      Email
Address of Authorized Signatory:
_____________________________________________

      Facsimile
Number of Authorized Signatory:
__________________________________________

      Address
for Notice of Purchaser:

      


      


      


      


      Address
for Delivery of Securities for Purchaser (if not same as address for
notice):

      


      


      


      


      


      Subscription
Amount: $200,000

      


      Shares:
2,000,000

      


      EIN
Number:  [PROVIDE
THIS UNDER SEPARATE COVER]

      


      


      [SIGNATURE
PAGES CONTINUE]

       

      
        
          
          

        

        
          35

          
            

          

        

        
          
          

        

      

      Annex
A

      


      CLOSING
STATEMENT

      


      Pursuant
to the attached Securities Purchase Agreement, dated as of October __, 2009, the
purchaser shall purchase up to $800,000 of Common Stock from Beyond Commerce,
Inc. (the “Company”).  All
funds will be wired into an account maintained by the Company.  All
funds will be disbursed in accordance with this Closing Statement.

      


      
        	
                Disbursement
      Date:

              	
                ___,
      2009

              


      

      


      


      
        	
                I.   PURCHASE PRICE

                 

              	 
      
	 
      	
                Gross
      Proceeds to be Received

              	
                $

              
	 
      	 
      
	
                II.      DISBURSEMENTS

                 

              	 
      
	 
      	
                 

              	
                $

              
	 
      	
                 

              	
                $

              
	 
      	 
      	
                $

              
	 
      	 
      	
                $

              
	 
      	 
      	
                $

              
	 
      	 
      
	
                Total
      Amount Disbursed:

              	
                $

              
	 
      	 
      
	 
      	 
      
	 
      	 
      
	
                WIRE INSTRUCTIONS:

                 

                 

              	 
      
	
                To:

                Beyond
      Commerce, Inc.

                Account
      #501008089726

                Wire
      ABA 026009593

                BOFAUS3N

                Bank
      of America

                970
      Transit Road

                West
      Seneca, NY 14224

                 

                Attn:
      Melissa Mercado

                Phone:
      (888) 852.5000 x2415

                Fax:
      (716) 656.2472

                 

                 

                 

                 

                 

              	 
      


         

        
          
            
            

          

          
            36

            
              

            

          

          
            
            

          

        

         

         

        	
                To:
      _____________________________________

                 

                 

                 

                 

                 

              	 
      


      

      Schedule

      
        	
                Beyond
      Commerce, Inc.

              	 	 	 	 	 	 
	 
      	 
      	 	 	 	 	 	 
	
                 Capitalization
      Table

              	 
      	 	 %
      outstanding	 	 	
                No.
      of Shares

              	 
	
                 Common
      Shares

              	 
      	 	
                 

              	 	 	 	 
	
                 Beyond
      Commerce Management (restricted)

              	 	 	3.3	%	 	 	1,577,122	 
	
                 Linlithgow
      Holdings, LLC . > 10% Shareholder

              	 	 	23.1	%	 	 	10,982,000	 
	
                 Unrestricted
      Shareholders

              	 
      	 	 	73.3	%	 	 	34,922,319	 
	
                 Restricted
      (rule 144 free trading 06.30.09)

              	 	 	0.3	%	 	 	159,500	 
	 
      	
                 Common
      stock outstanding

              	 	
                October
      8, 2009

              	 	 	 	47,640,941	 
	 
      	 
      	 	 	 	 	 	 	 	 
	
                Warrants
      Outstanding (includes convertible note payable tranches I,II, III,
      IV)

              	 	 	 	37,103,705	 
	
                 Convertible
      Note (Tranche I,II, III, IV)

              	 	 	 	 	 	 	3,257,143	 
	
                 Employee
      Stock Option Plan

              	 
      	 	 	 	 	 	 	4,637,703	 
	 
      	 
      	 	 	 	 	 	 	 	 
	
                 Total
      Shares and Equivalents Outstanding

              	 	 	 	 	 	 	92,639,491	 


      

      


      


      Schedule
3.1 (aa)

      
        	 
      	 	
                Note
      Balance

              	 	 	
                Conversion

              	 	 	 	 
	 
      	 	
                10/1/2009

              	 	 	
                Rate

              	 	 	
                Shares

              	 
	
                Note
      payable to Carole Harder bearing an annual interest rate of 12%,
      unsecured, due 6/20/09

              	 	$	140,000	 	 	$	0.70	 	 	 	200,000	 
	
                Convertible
      Promissory Notes, bearing an annual interest rate of 12%, secured, due
      1/31/10

              	 	$	2,280,000	 	 	$	0.70	 	 	 	3,257,143	 
	
                DOF/LinlithgowConvertible
      Promissory Notes, bearing an annual interest rate of 18%, secured, due
      12/1/09

              	 	$	1,333,333	 	 	$	0.70	 	 	 	1,904,761	 
	
                St
      George Convertible Promissory Notes due 1/15/2010

              	 	$	-	 	 	$	0.70	 	 	 	0	 
	
                 Omni
      Convertible Promissory Notes due 6/26/2010

              	 	$	583,330	 	 	$	0.70	 	 	 	833,329	 
	
                Omni
      Convertible Promissory Notes due 7/2/2010

              	 	$	583,330	 	 	$	0.70	 	 	 	833,329	 
	
                Omni
      Convertible Promissory Notes due 7/10/2010

              	 	$	583,330	 	 	$	0.70	 	 	 	833,329	 
	
                Omni
      Convertible Promissory Notes due 7/21/2010

              	 	$	1,750,010	 	 	$	0.70	 	 	 	2,500,014	 
	
                Omni
      Convertible Promissory Notes due 7/29/2010

              	 	$	648,145	 	 	$	0.70	 	 	 	925,921	 
	
                Omni
      Convertible Promissory Notes due 8/11/2010

              	 	$	291,665	 	 	$	0.70	 	 	 	416,664	 
	
                Omni
      Convertible Promissory Notes due 8/20/2010

              	 	$	116,666	 	 	$	0.70	 	 	 	166,666	 
	
                Omni
      Convertible Promissory Notes due 8/28/2010

              	 	$	373,332	 	 	$	0.70	 	 	 	533,331	 
	
                Omni
      Convertible Promissory Notes due 9/3/2010

              	 	$	699,996	 	 	$	0.70	 	 	 	999,994	 
	
                Bridge
      Notes, bearing an annual interest rate 12%, unsecured, due
      9/1/2009-10/6/09

              	 	$	480,000	 	 	$	1.00	 	 	 	480,000	 
	
                Bridge
      Notes, bearing an annual interest rate 12%, unsecured, due
      1/6/10

              	 	$	800,000	 	 	$	1.00	 	 	 	800,000	 
	 
      	 	 	 	 	 	 	 	 	 	 	 	 
	
                TOTAL

              	 	$	10,663,137	 	 	 	 	 	 	 	14,684,481	 


      

      
 

       

       

       

      37