8-K











Exhibit 10.1  




SECURITIES PURCHASE
AGREEMENT 



        This
Securities Purchase Agreement (this “Agreement”) is dated as of May 5,
2009, between Pluristem Therapeutics Inc., a Nevada corporation (the
“Company”), and each purchaser identified on the signature pages hereto
(each, including its successors and assigns, a “Purchaser” and
collectively the “Purchasers”). 



        WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to an
effective registration statement under the Securities Act of 1933, as amended (the
“Securities Act”), the Company desires to issue and sell to each
Purchaser, and each Purchaser, severally and not jointly, desires to purchase from the
Company, securities of the Company as more fully 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: 



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.  







	 	        “Closing” means
the closing of the purchase and sale of the Securities pursuant to Section 2.1.  







	 	        “Closing
Date” means the Trading Day when all of the Transaction Documents have been
executed and delivered by the applicable parties thereto, and all conditions precedent to
(i) the Purchasers’ obligations to pay the Subscription Amount and (ii) the Company’s
obligations to deliver the Securities have been satisfied or waived.  







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















	 	        “Common
Stock” means the common stock of the Company, par value $0.00001 per share, 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 Zysman, Aharoni, Gayer & Co./Sullivan & Worcester LLP,
with offices located at One Post Office Square, Boston, MA 02109.  







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







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







	 	        “Evaluation
Date” shall have the meaning ascribed to such term in Section 3.1(r).  







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







	 	        “Exempt
Issuance” means the issuance of (a) shares of Common Stock or options to
employees, officers, consultants, advisors or directors of the Company pursuant to any
stock or option plan duly adopted for such purpose, by a majority of the non-employee
members of the Board of Directors or a majority of the members of a committee of
non-employee directors established for such purpose, (b) securities received upon the
exercise or exchange of or conversion of any Securities issued hereunder and/or other
securities exercisable or exchangeable for or convertible into shares of Common Stock
issued and outstanding on the date of this Agreement, provided that such securities have
not been amended since the date of this Agreement to increase the number of such
securities or to decrease the exercise, exchange or conversion price of such securities,
and (c) securities issued pursuant to acquisitions or strategic transactions approved by
a majority of the disinterested directors of the Company, provided that any such issuance
shall only be to a Person which is, itself or through its subsidiaries, an operating
company in a business synergistic with the business of the Company and in which the
Company receives benefits in addition to the investment of funds, but shall not include a
transaction in which the Company is issuing securities primarily for the purpose of
raising capital or to an entity whose primary business is investing in securities.  







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







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







	 	        “FWS” means
Feldman Weinstein & Smith LLP with offices located at 420 Lexington Avenue, Suite
2620, New York, New York 10170-0002.  







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	 	        “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(z).  







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







	 	        “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).  







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







	 	        “Per
Share Purchase Price” equals $1.50, 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 prior to the Closing.  







	 	        “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.  







	 	        “Pharmaceutical
Product” shall have the meaning ascribed to such term in Section 3.1(gg).  







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







	 	        “Pro
Rata Portion” shall have the meaning ascribed to such term in Section 4.12(e).  







	 	        “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.  







	 	        “Prospectus” means
the final prospectus filed for the Registration Statement.  







	 	        “Prospectus
Supplement” means the supplement to the Prospectus complying with Rule 424(b) of
the Securities Act that is filed with the Commission prior to the Closing.  







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








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	 	        “Registration
Statement” means the effective registration statement with Commission file No.
333-151761 which registers the sale of the Shares, the Warrants and the Warrant Shares to
the Purchasers.  







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







	 	        “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.  







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







	 	        “Securities” means
the Shares, the Warrants and the Warrant Shares.  







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







	 	        “Shares” means
the shares of Common Stock issued or issuable to each Purchaser pursuant to this
Agreement.  







	 	        “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, as to each Purchaser, the aggregate amount to be paid for Shares
and Warrants purchased hereunder as specified below such Purchaser’s name on the
signature page of this Agreement and next to the heading “Subscription Amount,” in
United States dollars and in immediately available funds.  







	 	        “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.  







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







	 	        “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 or the
New York Stock Exchange.  







4







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







	 	        “Transfer
Agent” means American Stock Transfer & Trust Company, the current transfer
agent of the Company, and any successor transfer agent of the Company.  







	 	        “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.  







	 	        “Warrants” means,
collectively, the Common Stock purchase warrants delivered to the Purchasers at the
Closing in accordance with Section 2.2(a) hereof, which Warrants shall be exercisable 181
days from the date hereof and have a term of exercise equal to 5 years from the date they
are first exercisable, in the form of Exhibit A attached hereto.  







	 	        “Warrant
Shares” means the shares of Common Stock issuable upon exercise of the Warrants.  







ARTICLE II.  

PURCHASE AND SALE 



    2.1        Closing.
On the 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 Purchasers, severally and not jointly, agree
to purchase, up to an aggregate of $1,332,610.12 of Shares and Warrants. Each
Purchaser shall deliver to the Company, via wire transfer or a certified check,
immediately available funds equal to its Subscription Amount and the Company shall
deliver to each Purchaser its respective Shares and a Warrant as determined pursuant to
Section 2.2(a), and the Company and each Purchaser shall deliver the other items set
forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and
conditions set forth in Sections 2.2 and 2.3, the Closing shall occur at the offices of
FWS or such other location as the parties shall mutually agree and may take place by the
electronic delivery of executed documents.  



5







    2.2        Deliveries.  



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







		    (i)        this
Agreement duly executed by the Company;  







		    (ii)        a
legal opinion of Company Counsel, substantially in the form of Exhibit                B attached
hereto;  







		    (iii)        a
copy of the irrevocable instructions to the Company’s transfer agent
               instructing the transfer agent to deliver via the Depository Trust Company
               Deposit Withdrawal Agent Commission System (“DWAC”)
Shares                equal to such Purchaser’s Subscription Amount divided by the
Per Share                Purchase Price, registered in the name of such Purchaser;  







		    (iv)        a
Warrant registered in the name of such Purchaser to purchase up to a number of
               shares of Common Stock equal to 55% of such Purchaser’s
Shares, with                an exercise price equal to $1.96, subject to
adjustment therein (such                Warrant certificate may be delivered within three
Trading Days of the Closing                Date); and  







		    (v)        the
Prospectus and Prospectus Supplement (which may be delivered in accordance
               with Rule 172 under the Securities Act).  







		    (b)        On
or prior to the Closing Date, each Purchaser shall deliver or cause to be
               delivered to the Company the following:  







		    (i)        this
Agreement duly executed by such Purchaser; and  







		    (ii)        such
Purchaser’s Subscription Amount by wire transfer to the account as
               specified in writing by the Company.  







    2.3        Closing
Conditions.  



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



               



		    (i)        the
accuracy in all material respects on the Closing Date of the representations
               and warranties of the Purchasers contained herein;  







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







		    (iii)        the
delivery by each Purchaser of the items set forth in Section 2.2(b) of this
               Agreement.  







6








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








		    (i)        the
accuracy in all material respects on the Closing Date of the representations
               and warranties of the Company contained herein;  







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







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







		    (iv)        there
shall have been no Material Adverse Effect with respect to the Company
               since the date hereof; and  







		    (v)        from
the date hereof to the Closing Date, 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 the Closing Date, 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 each Purchaser, makes it impracticable or
inadvisable to                purchase the Securities at the Closing.  







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.  







7







		    (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.  







		    (d)       No
Conflicts. Except as set forth on Schedule 3.1(d), 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, or (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.  







8







		    (e)       Filings,
Consents and Approvals. Except as set forth on Schedule           3.1(e), 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 filing with the Commission of the Prospectus
Supplement, (iii)           application(s) to each applicable Trading Market for the
listing of the           Securities for trading thereon in the time and manner required
thereby and (iv)           such filings as are required to be made under applicable state
securities laws           and Nasdaq regulations (collectively, the “Required
          Approvals”).  







		    (f)       Issuance
of the Securities; Registration. The Securities 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. The Warrant           Shares, when issued
in accordance with the terms of the Warrants, will be           validly issued, fully
paid and nonassessable, free and clear of all Liens           imposed by the Company. The
Company has reserved from its duly authorized           capital stock the maximum number
of shares of Common Stock issuable pursuant to           this Agreement and the Warrants.
The Company has prepared and filed the           Registration Statement in conformity
with the requirements of the Securities           Act, which Registration Statement was
declared effective on July 1, 2008           (the “Effective Date”),
including the Prospectus, and such           amendments and supplements thereto as may
have been required to the date of this           Agreement. The Registration Statement is
effective under the Securities Act and           no stop order preventing or suspending
the effectiveness of the Registration           Statement or suspending or preventing the
use of the Prospectus has been issued           by the Commission and no proceedings for
that purpose have been instituted or,           to the knowledge of the Company, are
threatened by the Commission. The Company,           if required by the rules and
regulations of the Commission, proposes to file the           Prospectus Supplement with
the Commission pursuant to Rule 424(b). At the time           the Registration Statement
and any amendments thereto became effective, at the           date of this Agreement and
at the Closing Date, the Registration Statement and           any amendments thereto
conformed and will conform in all material respects to           the requirements of the
Securities Act and did not and will not contain any           untrue statement of a
material fact or omit to state any material fact required           to be stated therein
or necessary to make the statements therein not misleading;           and the Prospectus
and any amendments or supplements thereto, at the time the           Prospectus or any
amendment or supplement thereto was issued and at the Closing           Date, conformed
and will conform in all material respects to the requirements of           the Securities
Act and did not and will not contain an untrue statement of a           material fact or
omit to state a material fact necessary in order to make the           statements
therein, in light of the circumstances under which they were made,           not
misleading.  







9







		    (g)       Capitalization.
The capitalization of the Company is as set forth on Schedule 3.1(g). The Company
has not issued any capital stock since its           most recently filed periodic report
under the Exchange Act, other than pursuant           to the exercise of employee stock
options under the Company’s stock option           plans, the issuance of shares of
Common Stock to employees pursuant to the           Company’s employee stock
purchase plans and pursuant to the conversion           and/or exercise of Common Stock
Equivalents outstanding as of the date of the           most recently filed periodic
report under the Exchange Act. No Person has any           right of first refusal,
preemptive right, right of participation, or any similar           right to participate
in the transactions contemplated by the Transaction           Documents. Except as a
result of the purchase and sale of the Securities, there           are no outstanding
options, warrants, scrip rights to subscribe to, calls or           commitments of any
character whatsoever relating to, or securities, rights or           obligations
convertible into or exercisable or exchangeable for, or giving any           Person any
right to subscribe for or acquire, any shares of Common Stock, or           contracts,
commitments, understandings or arrangements by which the Company or           any
Subsidiary is or may become bound to issue additional shares of Common Stock           or
Common Stock Equivalents. The issuance and sale of the Securities will not
          obligate the Company to issue shares of Common Stock or other securities to any
          Person (other than the Purchasers) and will not result in a right of any holder
          of Company securities to adjust the exercise, conversion, exchange or reset
          price under any of such securities. 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. 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, together with the Prospectus and
          the Prospectus Supplement, 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 light of the circumstances under which
they were made, not           misleading. 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           (“GAAP”) applied on a consistent basis
during the periods           involved, 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.  







10







		    (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.  







		    (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.  







11







		    (k)       Labor
Relations. No material labor dispute exists or, to the knowledge of           the
Company, is imminent with respect to any of the employees of the Company,           which
could reasonably be expected to result in a Material Adverse Effect. None           of
the Company’s or its Subsidiaries’ employees is a member of a union
          that relates to such employee’s relationship with the Company or such
          Subsidiary, and neither the Company nor any of its Subsidiaries is a party to a
          collective bargaining agreement, and the Company and its Subsidiaries believe
          that their relationships with their employees are good. No executive officer,
to           the knowledge of the Company, is, or is now expected to be, in violation of
any           material term of any employment contract, confidentiality, disclosure or
          proprietary information agreement or non-competition agreement, or any other
          contract or agreement or any restrictive covenant in favor of any third party,
          and the continued employment of each such executive officer does not subject
the           Company or any of its Subsidiaries to any liability with respect to any of
the           foregoing matters. The Company and its Subsidiaries are in compliance with
all           U.S. federal, state, local and foreign laws and regulations relating to
          employment and employment practices, terms and conditions of employment and
          wages and hours, except where the failure to be in compliance could not,
          individually or in the aggregate, reasonably be expected to have a Material
          Adverse Effect.  







		    (l)       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.  







		    (m)       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.  







12







		    (n)       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.  







		    (o)       Patents
and Trademarks. To the knowledge of the Company, 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 necessary or material for use in connection with their
respective           businesses as described in the SEC Reports 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.  







		    (p)       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.  







		    (q)       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.  







13







		    (r)       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.  







		    (s)       Certain
Fees. Except as set forth in the Prospectus Supplement, 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.  







		    (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.  







14







		    (u)       Registration
Rights. Except as set forth on Schedule 3.1(u), no           Person has any
right to cause the Company to effect the registration under the           Securities Act
of any securities of the Company.  







		    (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.  







		    (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 which is not           otherwise
disclosed in the Prospectus Supplement. 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.  







15







		    (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
Securities to be integrated with prior offerings by the Company           for purposes of
any applicable shareholder approval provisions of any Trading           Market on which
any of the securities of the Company are listed or designated.  







		    (z)       Solvency.
Based on the consolidated financial condition of the Company as           of the Closing
Date, after giving effect to the receipt by the Company of the           proceeds from
the sale of the Securities hereunder, (i) the fair saleable value           of the Company’s
assets exceeds the amount that will be required to be paid           on or in respect of
the Company’s existing debts and other liabilities           (including known
contingent liabilities) as they mature, (ii) the Company’s           assets do not
constitute unreasonably small capital to carry on its business as           now conducted
and as proposed to be conducted including its capital needs taking           into account
the particular capital requirements of the business conducted by           the Company,
and projected capital requirements and capital availability           thereof, and (iii)
the current cash flow of the Company, together with the           proceeds the Company
would receive, were it to liquidate all of its assets,           after taking into
account all anticipated uses of the cash, would be sufficient           to pay all
amounts on or in respect of its liabilities when such amounts are           required to
be paid. The Company does not intend to incur debts beyond its           ability to pay
such debts as they mature (taking into account the timing and           amounts of cash
to be payable on or in respect of its debt). The Company has no           knowledge of
any facts or circumstances which lead it to believe that it will           file for
reorganization or liquidation under the bankruptcy or reorganization           laws of
any jurisdiction within one year from the Closing Date. Schedule           3.1(z) sets
forth as of the date thereof all outstanding secured and           unsecured Indebtedness
of the Company or any Subsidiary, or for which the           Company or any Subsidiary
has commitments. For the purposes of this Agreement,           “Indebtedness” means
(x) any liabilities for borrowed money or           amounts owed in excess of $50,000
(other than trade accounts payable incurred in           the ordinary course of
business), (y) all guaranties, endorsements and other           contingent obligations in
respect of indebtedness of others, whether or not the           same are or should be
reflected in the Company’s balance sheet (or the           notes thereto), except
guaranties by endorsement of negotiable instruments for           deposit or collection
or similar transactions in the ordinary course of           business; and (z) the present
value of any lease payments in excess of $50,000           due under leases required to
be capitalized in accordance with GAAP. Neither the           Company nor any Subsidiary
is in default with respect to any Indebtedness.  







		    (aa)       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.  







16







		    (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.  







		    (cc)       Accountants.
The Company’s accounting firm is set forth on Schedule 3.1(cc) 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
ended December 31, 2008.  







		    (dd)       Acknowledgment
Regarding Purchasers’ Purchase of Securities. The           Company acknowledges
and agrees that each of the Purchasers 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 no
Purchaser is 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 any           Purchaser or any
of their respective representatives or agents in connection           with the
Transaction Documents and the transactions contemplated thereby is           merely
incidental to the Purchasers’ purchase of the Securities. The           Company
further represents to each 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.  







		    (ee)       Acknowledgement
Regarding Purchaser’s Trading Activity. Anything in           this Agreement or
elsewhere herein to the contrary notwithstanding (except for           Sections 3.2(e)
and 4.14 hereof), it is understood and acknowledged by the           Company that: (i)
none of the Purchasers have been asked by the Company to           agree, nor has any
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 Securities for any           specified
term; (ii) that 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           transaction, may negatively impact the
market price of the Company’s           publicly-traded securities; (iii) that any
Purchaser, and counter-parties in           “derivative” transactions to which
any such Purchaser is a party,           directly or indirectly, presently may have a
“short” position in the           Common Stock, and (iv) that each Purchaser
shall not be deemed to have any           affiliation with or control over any arm’s
length counter-party in any           “derivative” transaction. The Company
further understands and           acknowledges that (y) one or more Purchasers may engage
in hedging activities at           various times during the period that the Securities
are outstanding, including,           without limitation, during the periods that the
value of the Warrant Shares           deliverable with respect to Securities are being
determined, and (z) such           hedging activities (if any) could reduce the value of
the existing           stockholders’ equity interests in the Company at and after
the time that           the hedging activities are being conducted.  The Company
acknowledges that           such aforementioned hedging activities do not constitute a
breach of any of the           Transaction Documents.  







17








		    (ff)       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
          Securities, (ii) sold, bid for, purchased, or, paid any compensation for
          soliciting purchases of, any of the Securities, 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 Securities.  







		    (gg)       FDA.
As to each product subject to the jurisdiction of the U.S. Food and Drug
Administration (“FDA”) under the Federal Food, Drug and Cosmetic Act,
as amended, and the regulations thereunder (“FDCA”) that is
manufactured, packaged, labeled, tested, distributed, sold, and/or marketed by
the Company or any of its Subsidiaries (each such product, a “Pharmaceutical
Product”), such Pharmaceutical Product is being manufactured,
packaged, labeled, tested, distributed, sold and/or marketed by the Company in
compliance with all applicable requirements under FDCA and similar laws, rules
and regulations relating to registration, investigational use, premarket
clearance, licensure, or application approval, good manufacturing practices,
good laboratory practices, good clinical practices, product listing, quotas,
labeling, advertising, record keeping and filing of reports, except where the
failure to be in compliance would not have a Material Adverse Effect. There is
no pending, completed or, to the Company’s knowledge, threatened, action
(including any lawsuit, arbitration, or legal or administrative or regulatory
proceeding, charge, complaint, or investigation) against the Company or any of
its Subsidiaries, and none of the Company or any of its Subsidiaries has
received any notice, warning letter or other communication from the FDA or any
other governmental entity, which (i) contests the premarket clearance,
licensure, registration, or approval of, the uses of, the distribution of, the
manufacturing or packaging of, the testing of, the sale of, or the labeling and
promotion of any Pharmaceutical Product, (ii) withdraws its approval of,
requests the recall, suspension, or seizure of, or withdraws or orders the
withdrawal of advertising or sales promotional materials relating to, any
Pharmaceutical Product, (iii) imposes a clinical hold on any clinical
investigation by the Company or any of its Subsidiaries, (iv) enjoins
production at any facility of the Company or any of its Subsidiaries, (v)
enters or proposes to enter into a consent decree of permanent injunction with
the Company or any of its Subsidiaries, or (vi) otherwise alleges any violation
of any laws, rules or regulations by the Company or any of its Subsidiaries,
and which, either individually or in the aggregate, would have a Material
Adverse Effect. The properties, business and operations of the Company have
been and are being conducted in all material respects in accordance with all
applicable laws, rules and regulations of the FDA.  The Company has not
been informed by the FDA that the FDA will prohibit the marketing, sale,
license or use in the United States of any product proposed to be developed,
produced or marketed by the Company nor has the FDA expressed any concern as to
approving or clearing for marketing any product being developed or proposed to
be developed by the Company.  








18







    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 the Closing
Date 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 this Agreement and           otherwise to
carry out its obligations hereunder and thereunder. The execution           and delivery
of this Agreement and performance by such Purchaser of the           transactions
contemplated by this Agreement 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 is acquiring the Securities as principal for           its
own account and not with a view to or for distributing or reselling such
          Securities 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 Securities 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
Securities           (this representation and warranty not limiting such Purchaser’s
right to           sell the Securities pursuant to the Registration Statement or
otherwise 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 Securities hereunder in the ordinary course of its
business.  







		    (c)       Purchaser
Status. At the time such Purchaser was offered the Securities,           it was, and
as of the date hereof it is, and on each date on which it exercises           any
Warrants, it will be 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.  







19







		    (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 Securities, 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 Securities and, at the present time, is able to           afford
a complete loss of such investment.  







		    (e)       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           (“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 Securities 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).           Notwithstanding the foregoing, for
avoidance of doubt, nothing contained herein           shall constitute a representation
or warranty, or preclude any actions, with           respect to the identification of the
availability of, or securing of, available           shares to borrow in order to effect
short sales or similar transactions in the           future.  







        The
Company acknowledges and agrees that the representations contained in Section 3.2 shall
not modify, amend or affect such Purchaser’s right to rely on the Company’s
representations and warranties contained in this Agreement or any representations and
warranties contained in any other Transaction Document or any other document or instrument
executed and/or delivered in connection with this Agreement or the consummation of the
transaction contemplated hereby. 



ARTICLE IV.  

OTHER AGREEMENTS OF THE
PARTIES 



    4.1        Warrant
Shares.   If all or any portion of a Warrant is exercised at a time when there is
an effective registration statement to cover the issuance or resale of the Warrant Shares
or if the Warrant is exercised via cashless exercise, the Warrant Shares issued pursuant
to any such exercise shall be issued free of all legends. If at any time following the
date hereof the Registration Statement (or any subsequent registration statement
registering the Warrant Shares) is not effective or is not otherwise available for the
sale or resale of the Warrant Shares, the Company shall immediately notify the holders of
the Warrants in writing that such registration statement is not then effective and
thereafter shall promptly notify such holders when the registration statement is
effective again and available for the sale or resale of the Warrant Shares. The Company
shall use best efforts to keep a registration statement (including the Registration
Statement) registering the issuance or resale of the Warrant Shares effective during the
term of the Warrants. Upon a cashless exercise of the Warrants, the holding period for
purposes of Rule 144 shall tack back to the original date of issuance of such Warrant.  



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    4.2        Furnishing
of Information. Until the earliest of the time that (i) no Purchaser owns Securities
or (ii) the Warrants have expired, the Company covenants 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
even if the Company is not then subject to the reporting requirements of the Exchange
Act. As long as any Purchaser owns Securities, 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, if any, as is
required for the Purchasers to sell the Securities under Rule 144. The Company further
covenants that it will take such further action as any holder of Securities may
reasonably request, to the extent required from time to time to enable such Person to
sell such Securities without registration under the Securities Act within the
requirements of the exemption provided by Rule 144.  



    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 Securities 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.  



    4.4        Securities
Laws Disclosure; Publicity. The Company shall, by 8:30 a.m. (New York City time) on
the Trading Day immediately 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).  



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    4.5        Shareholder
Rights Plan. No claim will be made or enforced by the Company or, with the consent of
the Company, by 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, in each case by virtue of
receiving Securities 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 Securities 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.  



    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.  



22







    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 and Warrant Shares pursuant to any exercise of
the Warrants. 



    4.10        Listing
of Common Stock.  The Company hereby agrees to use best efforts to maintain the
listing and quotation of the Common Stock on a Trading Market, and as soon as reasonably
practicable following the Closing (but not later than the Closing Date) to list or quote
all of the Shares and Warrant 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 Warrant Shares, and will take
such other action as is necessary to cause all of the Shares and Warrant Shares to be
listed or quoted 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.  



    4.11        Equal
Treatment of Purchasers. No consideration shall be offered or paid to any Person to
amend or consent to a waiver or modification of any provision of any of the Transaction
Documents unless the same consideration is also offered to all of the parties to the
Transaction Documents. For clarification purposes, this provision constitutes a separate
right granted to each Purchaser by the Company and negotiated separately by each
Purchaser, and is intended for the Company to treat the Purchasers as a class and shall
not in any way be construed as the Purchasers acting in concert or as a group with
respect to the purchase, disposition or voting of Securities or otherwise.  



23







    4.12        Participation
in Future Financing.  



		    (a)       From
the date hereof until the date that is the 12 month anniversary of the date
          hereof, upon any issuance by the Company or any of its Subsidiaries of Common
          Stock, Common Stock Equivalents for cash consideration, Indebtedness (or a
          combination of units hereof) (a “Subsequent Financing”), each
          Purchaser shall have the right to participate in up to an amount of the
          Subsequent Financing equal to 25% of the Subsequent Financing (the
          “Participation Maximum”) on the same terms, conditions and
          price provided for in the Subsequent Financing.  







		    (b)       At
least one (1) Trading Day prior to the execution of definitive documents
          relating to the Subsequent Financing, the Company shall deliver to each
          Purchaser a written notice of its intention to effect a Subsequent Financing
          (“Pre-Notice”), which Pre-Notice shall ask such Purchaser if
it           wants to review the details of such financing (such additional notice, a
          “Subsequent Financing  Notice”).  Upon the request of a
          Purchaser, and only upon a request by such Purchaser, for a Subsequent
Financing           Notice, the Company shall, immediately after the details of such
Subsequent           Financing are determined, deliver a Subsequent Financing Notice to
such           Purchaser upon which the Purchaser shall have 24 hours (which must include
          normal working hours during a Trading Day) to determine whether to
          participate.  The Subsequent Financing Notice shall describe in reasonable
          detail the proposed terms of such Subsequent Financing, the amount of proceeds
          intended to be raised thereunder and the Person or Persons through or with whom
          such Subsequent Financing is proposed to be effected and shall include a term
          sheet or similar document relating thereto as an attachment.  







		    (c)       Any
Purchaser desiring to participate in such Subsequent Financing must provide
          written notice to the Company by not later than 24 hours (which must include
          normal working hours during a Trading Day) following the time that a Subsequent
          Financing Notice is delivered to the Purchaser that the Purchaser is willing to
          participate in the Subsequent Financing, the amount of the Purchaser’s
          participation, and representing and warranting that the Purchaser has such
funds           ready, willing, and available for investment on the terms set forth in
the           Subsequent Financing Notice. If the Company receives no such notice from a
          Purchaser during such period, such Purchaser shall be deemed to have notified
          the Company that it does not elect to participate.  







		    (d)       If
the Purchasers willingness to participate in the Subsequent Financing (or to
          cause their designees to participate) is, in the aggregate, less than the total
          amount of the Subsequent Financing, then the Company may effect the remaining
          portion of such Subsequent Financing on the terms and with the Persons set
forth           in the Subsequent Financing Notice.  







		    (e)       If
the Company receives responses to a Subsequent Financing Notice from           Purchasers
seeking to purchase more than the aggregate amount of the           Participation
Maximum, each such Purchaser shall have the right to purchase its           Pro Rata
Portion (as defined below) of the Participation Maximum.           “Pro Rata
Portion” means the ratio of (x) the           Subscription Amount of Securities
purchased on the Closing Date by a Purchaser           participating under this Section
4.12 and (y) the sum of the aggregate           Subscription Amounts of Securities
purchased on the Closing Date by all           Purchasers participating under this
Section 4.12.  







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		    (f)       The
Company must provide the Purchasers with a second Subsequent Financing           Notice,
and the Purchasers will again have the right of participation set forth           above
in this Section 4.12, if the Subsequent Financing subject to the initial
          Subsequent Financing Notice is not consummated for any reason on the terms set
          forth in such Subsequent Financing Notice within thirty (30) Trading Days after
          the date of the initial Subsequent Financing Notice.  







		    (g)       Notwithstanding
the foregoing, this Section 4.12 shall not apply in respect of           (i) an Exempt
Issuance, or (ii) an underwritten public offering of its           securities.  







    4.13        Subsequent
Equity Sales. From the date hereof until 30 days after the Closing Date, neither the
Company nor any Subsidiary shall issue shares of Common Stock or Common Stock
Equivalents.  



    4.14        Short
Sales and Confidentiality After The Date Hereof. Each Purchaser, severally and not
jointly with the other Purchasers, covenants that neither it nor any Affiliate acting on
its behalf or pursuant to any understanding with it will execute any Short Sales during
the period commencing with the Discussion Time and ending at such time the transactions
contemplated by this Agreement are first publicly announced as described in Section 4.4.  Each
Purchaser, severally and not jointly with the other Purchasers, covenants that until such
time as the transactions contemplated by this Agreement are publicly disclosed by the
Company as described in Section 4.4, such Purchaser will maintain the confidentiality of
the existence and terms of this transaction and the information included in the
Disclosure Schedules.  Notwithstanding the foregoing, no Purchaser makes any
representation, warranty or covenant hereby that it will not engage in Short Sales in the
securities of the Company after the time that the transactions contemplated by this
Agreement are first publicly announced as described in Section 4.4.  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 covenant 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
Securities covered by this Agreement.  



    4.15        Delivery
of Securities After Closing; Buy-In. The Company shall deliver, or cause to be
delivered, the respective Securities purchased by each Purchaser to such Purchaser within
3 Trading Days of the Closing Date. In addition to any other rights available to the a
Purchaser, if the Company fails to cause the Transfer Agent to transmit to such Purchaser
it Shares within 3 Trading Days of the date required under this Agreement, and if after
such date the Purchaser is required by its broker to purchase (in an open market
transaction or otherwise) or the Purchaser’s brokerage firm otherwise purchases,
shares of Common Stock to deliver in satisfaction of a sale by the Purchaser of the
Shares which the Purchaser was entitled to receive hereunder (a “Buy-In”),
then the Company shall (A) pay in cash to the Purchaser the amount, if any, by which (x)
the Purchaser’s total purchase price (including brokerage commissions, if any) for
the shares of Common Stock so purchased exceeds (y) the amount obtained by multiplying
(1) the number of Shares that the Company was required to deliver to the Purchaser times
(2) the price at which the sell order giving rise to such purchase obligation was
executed, and (B) deliver to the Purchaser the number of shares of Common Stock that
would have been issued had the Company timely complied with its obligations hereunder.
Nothing herein shall limit a Purchaser’s right to pursue any other remedies
available to it hereunder, at law or in equity including, without limitation, a decree of
specific performance and/or injunctive relief with respect to the Company’s failure
to timely deliver certificates representing shares of Common Stock as required pursuant
to the terms hereof.  



25







    4.16        Capital
Changes. Until the one year anniversary of the Closing Date, the Company shall not
undertake a reverse or forward stock split or reclassification of the Common Stock
without the prior written consent of the Purchasers holding a majority in interest of the
Shares.  



    4.17        Liquidated
Damages for Failure to Comply. If the Company shall fail to observe or perform any
other covenant or agreement contained in the Transaction Documents (each, an “Event” and
the date on which such Event occurs, the “Event Date”), then, in
addition to any other rights the Purchasers may have hereunder or under applicable law,
on each such Event Date and on each monthly anniversary of each such Event Date (if the
applicable Event shall not have been cured by such date) until the applicable Event is
cured, the Company shall pay to each Purchaser, in cash, as liquidated damages and not as
a penalty, an amount equal to 1.5% of the Subscription Amount of the Shares then held by
such Purchaser, subject to a maximum aggregate amount of 10% of the original Subscription
Amount of such Purchaser; provided, that if any other provision of any Transaction
Document separately provides for liquidated damages for any particular breach of a
covenant therein, then if the Company actually pays such liquidated damages required
under such other Transaction Document, then no further liquidated damages shall be
payable pursuant to this provision. Nothing herein shall limit a Purchaser’s right
to pursue any remedies available to it hereunder, at law or in equity including, without
limitation, a decree of specific performance and/or injunctive relief. The exercise of
any such rights shall not prohibit a Purchaser from seeking to enforce damages pursuant
to any other Section hereof or under applicable law. If the Company fails to pay any
partial liquidated damages pursuant to this Section in full within seven days after the
date payable, the Company will pay interest thereon at a rate of 18% per annum (or such
lesser maximum amount that is permitted to be paid by applicable law) to the Purchaser,
accruing daily from the date such partial liquidated damages are due until such amounts,
plus all such interest thereon, are paid in full. The partial liquidated damages pursuant
to the terms hereof shall apply on a daily pro rata basis for any portion of a month
prior to the cure of an Event.  



ARTICLE V.  

MISCELLANEOUS 



    5.1        Termination.  This
Agreement may be terminated by any Purchaser, as to such Purchaser’s obligations
hereunder only and without any effect whatsoever on the obligations between the Company
and the other Purchasers, by written notice to the other parties, if the Closing has not
been consummated on or before May 8, 2009; 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. Except as expressly set forth in the Transaction Documents to the
contrary, each party shall pay the fees and expenses of its advisers, counsel,
accountants and other experts, if any, and all other expenses incurred by such party
incident to the negotiation, preparation, execution, delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and
duties levied in connection with the delivery of any Securities to the Purchasers.  



26







    5.3        Entire
Agreement. The Transaction Documents, together with the exhibits and schedules
thereto, the Prospectus and the Prospectus Supplement, 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 2ndTrading 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 or amended except in a written
instrument signed, in the case of an amendment, by the Company and the Purchasers holding
at least 67% of the Shares then held by the Purchasers in the aggregate 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.  



    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 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.  



27







    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 contained herein shall survive the Closing and the
delivery of the Securities for the applicable statute of limitations.  



    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.  



28








    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; provided, however, that in the case of a rescission of an exercise
of a Warrant, the Purchaser shall be required to return any shares of Common Stock
subject to any such rescinded exercise notice.  



    5.14        Replacement
of Securities. If any certificate or instrument evidencing any Securities 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 Securities.  



    5.15        Remedies.
In addition to being entitled to exercise all rights provided herein or granted by law,
including recovery of damages, each of the Purchasers 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 agree 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.  



    5.16        Payment
Set Aside. To the extent that the Company makes a payment or payments to any
Purchaser pursuant to any Transaction Document or a 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        Independent
Nature of Purchasers’ Obligations and Rights. The obligations of each Purchaser
under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance or
non-performance of the obligations of any other Purchaser under any Transaction Document.
Nothing contained herein or in any other Transaction Document, and no action taken by any
Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or create a
presumption that the Purchasers are in any way acting in concert or as a group with
respect to such obligations or the transactions contemplated by the Transaction
Documents. Each Purchaser shall be entitled to independently protect and enforce its
rights including, without limitation, the rights arising out of this Agreement or out of
the other Transaction Documents, and it shall not be necessary for any other Purchaser to
be joined as an additional party in any proceeding for such purpose. Each Purchaser has
been represented by its own separate legal counsel in their review and negotiation of the
Transaction Documents. For reasons of administrative convenience only, Purchasers and
their respective counsel have chosen to communicate with the Company through FWS. FWS
does not represent all of the Purchasers but only Rodman & Renshaw, LLC. The Company
has elected to provide all Purchasers with the same terms and Transaction Documents for
the convenience of the Company and not because it was required or requested to do so by
the Purchasers.  



29







    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) 



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        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. 




	PLURISTEM THERAPEUTICS, INC. 



By:
——————————————

   Name:
   Title:
With a copy to (which shall not
constitute notice):	 Address for Notice:



Fax:
 










[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR PURCHASER FOLLOWS]



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[PURCHASER SIGNATURE PAGES TO PSTI SECURITIES PURCHASE AGREEMENT]



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



Name of Purchaser: _______________________________________________________________________



Signature of Authorized Signatory of Purchaser: _________________________________________________



Name of Authorized Signatory: ______________________________________________________________



Title of Authorized Signatory: _______________________________________________________________



Email Address of Authorized Signatory:________________________________________________________



Fax 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: $_________________



Shares: _________________



Warrant Shares: __________________



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER] 





[SIGNATURE PAGES
CONTINUE] 



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