EX-10.1






EXHIBIT 10.1




SECURITIES PURCHASE AGREEMENT




This Securities Purchase Agreement (this “Agreement”) is dated as of March 8, 2007, by and
among Neose Technologies, Inc., a Delaware 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
Section 4(2) of the Securities Act of 1933, as amended (the “Securities Act”), and Rule 506
promulgated thereunder, 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:




“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 144 under the Securities Act. With respect
to a Purchaser, any investment fund or managed account that is managed on a discretionary
basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of
such Purchaser.




“Business Day” means any day except Saturday, Sunday, any day which shall be 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.




“Closing Price” means on any particular date (a) the last reported closing bid price
per share of Common Stock on such date on the Trading Market (as reported by Bloomberg L.P.
at 4:15 p.m. (New York City time)), or (b) if there is no such price on such date, then the
closing bid price on the Trading Market on the date nearest preceding such date (as reported
by Bloomberg L.P. at 4:15 p.m. (New York City time)), or (c) if the Common Stock is not
then listed or quoted on the Trading Market 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) if the shares of Common Stock are not then publicly
traded the fair market value of a share of Common Stock as determined by an independent
appraiser mutually acceptable to the Company and the Purchasers of 67% of the then
outstanding Securities.




“Commission” means the Securities and Exchange Commission.




“Common Stock” means the common stock of the Company, par value $0.01 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, stock appreciation
rights, restricted stock units 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 Pepper Hamilton LLP, with offices located at 3000 Two Logan
Square, Eighteenth and Arch Streets, Philadelphia, Pennsylvania 19103.




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




“Effective Date” means the date that the Initial Registration Statement is first
declared effective by the Commission.




“Equity Incentive Plan” means (i) any equity incentive, stock option or similar plan
and (ii) any other agreement, arrangement, understanding or other document pursuant to which
the Company is obligated to grant or issue Common Stock or Common Stock Equivalents to
current or former employees in connection with their services to the Company which is
included as an exhibit to any of the SEC Reports, in each case adopted or approved by a
majority of the non-employee members of the board of directors of the Company or a majority
of the members of a committee of non-employee directors established.




“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 Common Stock
Equivalents to employees, officers or directors of the Company pursuant to any Equity
Incentive Plan, (b) securities upon the exercise or exchange of or conversion of (i) any
Securities issued hereunder, (ii) Common Stock Equivalents issued pursuant to an Equity
Incentive Plan or (iii) other Common Stock Equivalents 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.




“FPO” means the UK’s Financial Services and Markets Act 2000 (Financial Promotion)
Order 2005.




“FSMA” means the UK’s Financial Services and Markets Act 2000 (as amended).




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




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




“GSPA” means the German Securities Prospectus Act (Wertpapierprospektgesetz) of June
22, 2005, as amended.




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




“Initial Registration Statement” means the initial Registration Statement filed by the
Company pursuant to the Registration Rights Agreement.




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




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




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




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




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




“Per Unit Purchase Price” equals $2.02, being the sum of (a) the Closing Price
immediately prior to the execution hereof, 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 (b) $0.05625.




“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.




“Placement Agent” means Rodman & Renshaw, LLC.




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




“Purchaser Party” shall have the meaning ascribed to such term in Section 4.9.




“Registration Rights Agreement” means the Registration Rights Agreement, dated the date
hereof, among the Company and the Purchasers, in the form of Exhibit A attached hereto.




“Registration Statement” means a registration statement meeting the requirements set
forth in the Registration Rights Agreement and covering the resale by the Purchasers of all
or part of the Shares and the Warrant Shares.




“Regulation S” means Rules 901 through 905 (including the preliminary notes)
promulgated by the Commission pursuant to the Securities Act, as such rules 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 rules.




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




“Rights Plan” means the Amended and Restated Rights Agreement by and between the
Company and the Transfer Agent dated December 3, 1998, as amended.




“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 4.13.




“Subsequent Financing Notice” shall have the meaning ascribed to such term in Section
4.13.




“Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a).




“Trading Day” means a day on which the Common Stock is traded on a Trading Market.




“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.




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




“Transfer Agent” means American Stock Trust & Transfer Company, with a mailing address
of 59 Maiden Lane, Plaza Level, New York, New York 10038 and a facsimile number of (718)
921-8334, and any successor transfer agent of the Company.




“UK” means the United Kingdom of Great Britain and Northern Ireland.




“Unit” means one Share and 45/100 of a Warrant to purchase one share of Common Stock.




“U.S.” means the United States of America.




“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 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
Purchaser 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 immediately and have a term of exercise equal to 5 years, in the form of Exhibit
C 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 each Purchaser, severally and not jointly, agrees to
purchase, at the Per Unit Purchase Price up to an aggregate of $48,000,000 of Units. Each
Purchaser shall deliver to the Company, via wire transfer, 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
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.



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, in the form of Exhibit B attached
hereto;




(iii) a copy of the irrevocable instructions to the Transfer Agent instructing
the Transfer Agent to deliver, on an expedited basis, a certificate evidencing the
number of Shares contained in such Purchaser’s Units, registered in the name of such
Purchaser;




(iv) a Warrant registered in the name of such Purchaser to purchase up to a
number of Warrant Shares contained in such Purchaser’s Units (rounded down to the
nearest whole number of Warrant Shares), with an exercise price equal to the Closing
Price immediately prior to the execution hereof, subject to adjustment therein; and




(v) the Registration Rights Agreement duly executed by the Company.




(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;




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




(iii) the Registration Rights Agreement duly executed by such Purchaser.



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 when made and on the Closing Date of
the representations and warranties of the Purchasers contained herein;




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




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




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




(i) the accuracy in all material respects when made and 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;




(v) the Company receives funds to purchase an aggregate of at least $25,000,000
of Units on the Closing Date; and




(vi) 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 Shares 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.




(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 (as applicable), 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 or
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, would 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, its board of directors or its stockholders in connection therewith
other than in connection with the Required Approvals. Each Transaction Document 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. The execution, delivery and performance of the Transaction Documents
by the Company, the issuance and sale of the Shares and the consummation by the Company 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 would not have or reasonably be expected to result in a Material Adverse Effect.




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




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




(g) Capitalization. The capitalization of the Company is as set forth on Schedule
3.1(g), which Schedule 3.1(g) shall also include the number of shares of Common Stock owned
beneficially, and of record, by Affiliates of the Company as of the date hereof. The Company
has not issued any capital stock since its most recently filed periodic report under the
Exchange Act, other than pursuant to the conversion 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 set forth on Schedule 3.1(g) or 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. Except for the Required Approvals, no further approval or authorization of any
stockholder, the Board of Directors of the Company 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, being collectively
referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension
of such time of filing and has filed any such SEC Reports prior to the expiration of any
such extension. As of their respective dates, the SEC Reports complied in all material
respects with the requirements of the Securities Act and the Exchange Act, as applicable,
and none of the SEC Reports, when filed, contained any untrue statement of a material fact
or omitted to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they were made,
not misleading. The financial statements of the Company included in the SEC Reports comply
in all material respects with applicable accounting requirements and the rules and
regulations of the Commission with respect thereto as in effect at the time of filing. Such
financial statements have been prepared in accordance with United States generally accepted
accounting principles applied on a consistent basis during the periods involved (“GAAP”),
except as may be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes required by GAAP,
and fairly present in all material respects the financial position of the Company and its
consolidated subsidiaries as of and for the dates thereof and the results of operations and
cash flows for the periods then ended, subject, in the case of unaudited statements, to
normal, immaterial, year-end audit adjustments.




(i) Material Changes; Undisclosed Events, Liabilities or Developments. Except as set
forth on Schedule 3.1(i), 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 executive officer, director or
Affiliate, except pursuant to the Equity Incentive Plan. 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 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 executive 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 executive officer of the Company. The
Commission has not issued any stop order or other order suspending the effectiveness of any
registration statement filed by the Company or any Subsidiary under the Exchange Act or the
Securities Act.




(k) 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, and neither the Company or 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,
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. Except as set forth on Schedule 3.1(l), 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 would 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 have or 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.




(n) Title to Assets. The Company and the Subsidiaries have 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 (i) securing
payment under the obligations set forth on Schedule 3.1(n), (ii) that do not materially
affect the value of such property and (iii) that 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 in all material respects. The
Company does not own any real property.




(o) Patents and Trademarks. The Company and the Subsidiaries have, or have rights to
use, all patents, patent applications, trademarks, trademark applications, service marks,
trade names, trade secrets, inventions, copyrights, licenses and other intellectual property
rights and similar rights necessary or material for use in connection with their respective
businesses as described in the SEC Reports and which the failure to so would not have or
reasonably be expected to have a Material Adverse Effect (collectively, the “Intellectual
Property Rights”). To the Company’s knowledge, the conduct of the Company’s and any
Subsidiary’s businesses will not conflict in any material respects with any Intellectual
Property Rights of others. Neither the Company nor any Subsidiary has received a notice
(written or otherwise) that 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 valid 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 customary
in the businesses in which the Company and the Subsidiaries are engaged. Except as set
forth on Schedule 3.1(p), the Company carries 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 executive 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, executive 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 executive 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 and restricted stock unit
agreements under any Equity Incentive Plan.




(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 on Schedule 3.1(s), 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) Private Placement. Assuming the accuracy of the Purchasers representations and
warranties set forth in Section 3.2, no registration under the Securities Act is required
for the offer and sale of the Securities by the Company to the Purchasers as contemplated
hereby. The issuance and sale of the Securities hereunder does not contravene the rules and
regulations of the Trading Market.




(u) 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.




(v) Registration Rights. Except as set forth in Schedule 3.1(v) and other than each of
the Purchasers, no Person has any right to cause the Company to effect the registration
under the Securities Act of any securities of the Company.




(w) Listing and Maintenance Requirements. The Company’s 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.




(x) Application of Takeover Protections. Except for the continued existence of the
Rights Plan, the Company and its 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.




(y) Disclosure. Except with regard to the Purchasers set forth on Schedule 3.1(y) and
except respect to the material terms and conditions of the transactions contemplated by the
Transaction Documents, the Company confirms that neither it nor any other Person acting on
its behalf has provided any of the Purchasers or their agents or counsel with any
information that it believes constitutes or might constitute material, non-public
information. The Company understands and confirms that the Purchasers will rely on the
foregoing representation in effecting transactions in securities of the Company. All
disclosure furnished by or on behalf of the Company to the Purchasers regarding the Company,
its business and the transactions contemplated hereby, including the Disclosure Schedules to
this Agreement, is true and correct and does not contain any untrue statement of a material
fact or omit to state any material fact necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not misleading. The press
releases disseminated by the Company during the twelve months preceding the date of this
Agreement taken as a whole do not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to make the
statements, 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.




(z) 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 or aggregated with prior
offerings by the Company for purposes of the Securities Act or any applicable shareholder
approval provisions of any Trading Market on which any of the securities of the Company are
listed or designated.




(aa) Solvency. Based on the 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 Company reasonably expects to have sufficient cash on hand to
pay all of its currently foreseeable expenses for at least the next 12 months, (ii) 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; (iii) 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 (iv) 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(aa) sets forth as of
the dates 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 (a) 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), (b) 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 (c) 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.




(bb) 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.




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




(dd) 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.




(ee) Accountants. The Company’s accounting firm is set forth on Schedule 3.1(ee) of
the Disclosure Schedule. To the knowledge 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 on Form 10-K for the year ending December 31, 2006.




(ff) No Disagreements with Accountants and Lawyers. There are no disagreements of any
kind presently existing, or reasonably anticipated by the Company to arise, between the
Company and the accountants and lawyers formerly or presently employed by the Company and
the Company is current with respect to any fees owed to its accountants and lawyers.




(gg) Acknowledgment Regarding Purchasers’ Purchase of Securities. The Company
acknowledges and agrees that, except as set forth on Schedule 3.1(gg), 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.




(hh) Acknowledgement Regarding Purchaser’s Trading Activity. Anything in this
Agreement or elsewhere herein to the contrary notwithstanding (except for Sections 3.2(f)
and 4.15 hereof), it is understood and acknowledged by the Company (i) that none of the
Purchasers have been asked 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, including Short
Sales, and specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement transactions,
may negatively impact the market price of the Company’s publicly-traded securities; (iii)
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 (a) 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 (b) 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.




(ii) 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 Placement Agent in connection with the placement of the Securities.




(jj) 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 other federal or state 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 reasonably be
expected to have a Material Adverse Effect. Except as set forth on Schedule 3.1(jj), 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 or reasonably be expected to 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.




(kk) Form S-3 Eligibility. The Company is eligible to register the resale of its
Common Stock on Form S-3 promulgated under the Securities Act.




(ll) Stock Options. With respect to stock options issued pursuant to the Company’s
Equity Incentive Plan(s) (i) each stock option designated by the Company at the time of
grant as an “incentive stock option” under Section 422 of the Code so qualifies, (ii) each
grant of a stock option was duly authorized no later than the date on which the grant of
such stock option was by its terms to be effective (the “Grant Date”) by all necessary
corporate action, including, as applicable, approval by the board of directors of the
Company (or a duly constituted and authorized committee thereof) and any required
stockholder approval by the necessary number of votes or written consents, (iii) each such
grant was made in accordance with the material terms of an Equity Incentive Plan, the
Securities Act and all other applicable laws and regulatory rules or requirements, including
the rules of The NASDAQ Stock Market LLC and any other exchange on which Company securities
are traded and (iv) each such grant was or has now been properly accounted for in accordance
with GAAP in the financial statements (including the related notes) of the Company and
disclosed in the Company’s filings with the Commission in accordance with the Exchange Act
and all other applicable laws, except, in the cases of clauses (i), (ii), (iii) and (iv),
for any such failure, violation or default that would not be material to the Company and its
subsidiaries taken as a whole.



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 the Transaction Documents and otherwise to carry out its
obligations hereunder and thereunder. The execution, delivery 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 understands that the Securities are “restricted
securities” and have not been registered under the Securities Act or any applicable state or
other securities law and 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 or other securities law, has no
present intention of distributing any of such Securities in violation of the Securities Act
or any applicable state or other 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 or other 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 at 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 or (iii) an “investment professional” as defined in
Article 19(5) of the FPO, (iv) a high net worth company or other body within the meaning of
Article 49 of the FPO, and, in the case of a Purchaser in the UK, it is a “qualified
investor” for the purposes of section 86(7) of the FSMA or is otherwise permitted by law to
have the offer contained in this Agreement made to it without requiring the publication and
registration of a prospectus under the FSMA or (v) a “qualified investor” (qualifizierter
Anleger) with the meaning of Section 2 no. 6 GSPA. No Purchaser is required to be
registered as a broker-dealer under Section 15 of the Exchange Act.




(d) Experience of Such Purchaser. Such Purchaser, either alone or together with its
representatives, has such knowledge, sophistication and experience in business and financial
matters so as to be capable of evaluating the merits and risks of the prospective investment
in the 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) General Solicitation. Such Purchaser is not purchasing the Securities as a result
of any advertisement, article, notice or other communication regarding the Securities
published in any newspaper, magazine or similar media or broadcast over television or radio
or presented at any seminar or any other general solicitation or general advertisement.




(f) Short Sales and Confidentiality Prior To The Date Hereof. Other than the
transaction 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 transaction, including Short Sales, in 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 setting forth the material terms of the
transactions contemplated hereunder until the date hereof (“Discussion Time”).
Notwithstanding the foregoing, in the case of a Purchaser that is a multi-managed investment
vehicle whereby separate portfolio managers manage separate portions of such Purchaser’s
assets and the portfolio managers have no direct knowledge of the investment decisions made
by the portfolio managers managing other portions of such Purchaser’s assets, the
representation set forth above shall only apply with respect to the portion of assets
managed by the portfolio manager that made the investment decision to purchase the
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).




(g) Non-Controlling Status. Following the consummation of the transactions
contemplated by the Transaction Documents and assuming the full exercise of such Purchaser’s
Warrants, the total number of shares of Common Stock held by such Purchaser shall not
represent more than 14.9% of the outstanding Common Stock.




(h) Affiliate Status. If such Purchaser is domiciled or was formed outside of the
U.S., such Purchaser is not an “affiliate” (as defined in Rule 144) of the Company or acting
on behalf of the Company and, at the time the commitment to purchase the Securities was
originated, was outside the U.S. and was not a U.S. person (and was not acquiring for the
account or benefit of a U.S. person) within the meaning of Regulation S.




(i) Provision of Information. Such Purchaser has been afforded (i) the opportunity to
ask such questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the Securities and the
finances, operations and business of the Company; and (ii) the opportunity to request such
additional information which the Company possesses or can acquire without unreasonable
effort or expense.




(j) Certain Fees. No brokerage or finder’s fees or commissions are or will be payable
by such Purchaser 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.




(k) Residency; Foreign Securities Laws. Unless such Purchaser resides, in the case of
individuals, or is headquartered or formed, in the case of entities, in the United States,
such Purchaser acknowledges that the Company will not issue any Securities in compliance
with the laws of any jurisdiction outside of the United States and the Company makes no
representation or warranty that any Securities issued outside of the United States have been
offered or sold in compliance with the laws of the jurisdiction into which such Securities
were issued. Any Purchaser not a resident of or formed in the United States warrants to the
Company that no filing is required by the Company with any governmental authority in such
Purchaser’s jurisdiction in connection with the transactions contemplated hereby. If such
Purchaser is domiciled or was formed outside of the U.S., such Purchaser has satisfied
itself as to the full observance of the laws of its jurisdiction in connection with the
acquisition of the Securities or any use of this Agreement, including (i) the legal
requirements within its jurisdiction for the purchase of the Securities, (ii) any foreign
exchange restrictions applicable to such purchase, (iii) any governmental or other consents
that may need to be obtained and (iv) the income tax and other tax consequences, if any,
that may be relevant to the purchase, holding, redemption, sale or transfer of the
Securities. If such Purchaser is domiciled or was formed outside the U.S., such Purchaser’s
acquisition of and payment for, and its continued ownership of the Securities, will not
violate any applicable securities or other laws of his, her or its jurisdiction.




(l) Acknowledgement. Each Purchaser acknowledges that the Company has relied upon the
representations and warranties of the Purchasers set forth in Section 3.2 in its
determination that no registration under the Securities Act is required for the offer and
sale of the Securities by the Company to the Purchasers as contemplated by this Agreement.



ARTICLE IV.




OTHER AGREEMENTS OF THE PARTIES





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




(b) The Purchasers that reside, are domiciled or are formed, within the U.S. agree to
the imprinting, so long as is required by this Section 4.1, of a legend on any of the
Securities in the following form:




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




(c) The Purchasers that are domiciled or are formed outside of the U.S. agree to the
imprinting, so long as is required by this Section 4.1, of a legend on any of the Securities
in the following form:




THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF
1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE OR OTHER SECURITIES LAWS, AND
MAY NOT BE OFFERED, REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR
OTHERWISE DISPOSED OF OR DISTRIBUTED, DIRECTLY OR INDIRECTLY, WITHIN THE UNITED
STATES OR TO OR FOR THE ACCOUNT OF U.S. PERSONS UNLESS THE TRANSACTION IS EXEMPT
FROM, OR NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT. THE HOLDER
OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL NOT OFFER, REOFFER,
SELL, ASSIGN, TRANSFER, PLEDGE, ENCUMBER OR OTHERWISE DISPOSE OF OR DISTRIBUTE
DIRECTLY OR INDIRECTLY THESE SECURITIES IN THE UNITED STATES, ITS TERRITORIES,
POSSESSIONS, OR AREAS SUBJECT TO ITS JURISDICTION, OR TO OR FOR THE ACCOUNT OR
BENEFIT OF A U.S. PERSON EXCEPT (A) TO THE COMPANY OR A SUBSIDIARY OF THE COMPANY,
(B) IN CONJUNCTION WITH AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER
THE SECURITIES ACT, (C) IN COMPLIANCE WITH AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT OR (D) IN ACCORDANCE WITH THE PROVISIONS OF REGULATION S, INCLUDING
RULES 904 AND 905 THEREOF. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF
FURTHER AGREES THAT ANY HEDGING TRANSACTIONS INVOLVING THE SECURITIES WILL BE
CONDUCTED IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES ACT AND AGREES THAT
IT WILL GIVE TO EACH PERSON TO WHOM THIS SECURITY IS TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND; PROVIDED THAT THE COMPANY, THE TRANSFER
AGENT, AND THE REGISTRAR SHALL HAVE THE RIGHT PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER, IN EACH OF THE FOREGOING CASES, TO REQUIRE DELIVERY OF A CERTIFICATION OF
TRANSFER AND OPINION OF COUNSEL IN FORM SATISFACTORY TO THEM. AS USED HEREIN, THE
TERMS “UNITED STATES” AND “U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT.




(d) The Company acknowledges and agrees that a Purchaser may from time to time pledge
pursuant to a bona fide margin agreement with a registered broker-dealer or grant a security
interest in some or all of the Securities to a financial institution that is an “accredited
investor” as defined in Rule 501(a) under the Securities Act and who agrees to be bound by
the provisions of this Agreement and the Registration Rights Agreement and, if required
under the terms of such arrangement, such Purchaser may transfer pledged or secured
Securities to the pledgees or secured parties. Such a pledge or transfer would not be
subject to approval of the Company and no legal opinion of legal counsel of the pledgee,
secured party or pledgor shall be required in connection therewith. Further, no notice
shall be required of such pledge. At the appropriate Purchaser’s expense, the Company will
execute and deliver such reasonable documentation as a pledgee or secured party of
Securities may reasonably request in connection with a pledge or transfer of the Securities,
including, if the Securities are subject to registration pursuant to the Registration Rights
Agreement, the preparation and filing of any required prospectus supplement under Rule
424(b)(3) under the Securities Act or other applicable provision of the Securities Act to
appropriately amend the list of Selling Stockholders thereunder.




(e) Certificates evidencing the Shares and Warrant Shares shall not contain any legend
(including the legend set forth in Section 4.1(b)), (i) while a registration statement
(including the Registration Statement) covering the resale of such security is effective
under the Securities Act, or (ii) following any sale of such Shares or Warrant Shares
pursuant to Rule 144, or (iii) if such Shares or Warrant Shares are eligible for sale under
Rule 144(k), or (iv) if such legend is not required under applicable requirements of the
Securities Act (including judicial interpretations and pronouncements issued by the staff of
the Commission). The Company shall cause its counsel to issue a legal opinion to the
Transfer Agent promptly after the Effective Date if required by the Transfer Agent to effect
the removal of the legend hereunder. If all or any portion of a Warrant is exercised at a
time when there is an effective registration statement to cover the resale of the Warrant
Shares, such Warrant Shares shall be issued free of all legends. The Company agrees that
following the Effective Date or at such time as such legend is no longer required under this
Section 4.1(c), it will, no later than 3 Trading Days following the delivery by a Purchaser
to the Company or the Transfer Agent of a certificate representing Shares or Warrant Shares,
as the case may be, issued with a restrictive legend (such third Trading Day, the “Legend
Removal Date”), deliver or cause to be delivered to such Purchaser a certificate
representing such shares that is free from all restrictive and other legends.
Notwithstanding the foregoing, the Company shall not be required to remove any legends until
all Securities represented by a single certificate are no longer subject to restrictions.
If only a portion of the Securities represented by any single certificate are subject to
restrictions, the holder of the certificate may request, or the Company may require, that
such certificate be cancelled and two new certificates be issued. One certificate shall
represent, and be in the amount of, Securities not subject to restrictions and shall bear no
legend and the second certificate shall represent, and be in the amount of, Securities
subject to restrictions and shall bear an appropriate legend. The Company may not make any
notation on its records or give instructions to the Transfer Agent that enlarge the
restrictions on transfer set forth in this Section. Certificates for Securities subject to
legend removal hereunder shall be transmitted by the Transfer Agent to the Purchasers by
crediting the account of the Purchaser’s prime broker with the Depository Trust Company
System.




(f) In addition to such Purchaser’s other available remedies, the Company shall pay to
a Purchaser, in cash, as partial liquidated damages and not as a penalty, for each $1,000 of
Shares or Warrant Shares (based on the VWAP of the Common Stock on the date such Securities
are submitted to the Transfer Agent) delivered for removal of the restrictive legend and
subject to Section 4.1(c), $10 per Trading Day (increasing to $20 per Trading Day five (5)
Trading Days after such damages have begun to accrue) for each Trading Day after the Legend
Removal Date until such certificate is delivered without a legend. Nothing herein shall
limit such Purchaser’s right to pursue actual damages for the Company’s failure to deliver
certificates representing any Securities as required by the Transaction Documents, and such
Purchaser shall have the right to pursue all remedies available to it at law or in equity
including, without limitation, a decree of specific performance and/or injunctive relief.




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




(h) Each Purchaser that is domiciled or was formed outside of the U.S. agrees on its
own behalf and on behalf of any investor account for which it is acquiring the Securities,
and each subsequent permitted transferee of the Securities by its acceptance thereof will be
deemed to have agreed, that all subsequent offers and sales of Securities prior to the date
which is two years after the Closing Date shall be made only (1) to the Company or a
subsidiary thereof, (2) pursuant to a registration statement which has been declared
effective under the Securities Act, (3) pursuant to offers and sales to non-U.S. persons
that occur outside the United States within the meaning of Regulation S and in compliance
with Rules 904 and 905 thereunder, or (4) pursuant to any other available exemption from the
registration requirements of the Securities Act.




(i) Each Purchaser that is domiciled or was formed outside of the U.S. represents and
agrees on his, her or its behalf and on behalf of any investor account for which it is
acquiring the Securities, and each subsequent permitted transferee of the Securities, by its
acceptance thereof, will be deemed to have agreed, that (i) no subscription, resale or other
transfer of the Securities has been arranged, or at Closing will have been arranged, to
return the Securities to the U.S. securities markets or to a U.S. citizen or resident, and
(ii) any hedging transaction involving the Securities will be conducted only in compliance
with the requirements of the Securities Act.



4.2 Furnishing of Information. As long as any Purchaser owns Securities and the Company
remains subject to the requirements of the Exchange Act, 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. 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 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 in a manner that would require the
registration under the Securities Act of the sale of the Securities to the Purchasers or 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 filing 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 or 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 (i) as required by federal securities law in connection with (A)
any registration statement contemplated by the Registration Rights Agreement, (B) the Form 8-K
required by this Section 4.4, (C) any filing required by the Commission and (D) the filing of final
Transaction Documents (including signature pages thereto) with the Commission and (ii) 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 (ii).



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



4.8 Reimbursement. If any Purchaser becomes involved in any capacity in any Proceeding by or
against any Person who is a stockholder of the Company (except as a result of sales, pledges,
margin sales and similar transactions by such Purchaser to or with any other stockholder), solely
as a result of such Purchaser’s acquisition of the Securities under this Agreement, the Company
will reimburse such Purchaser for its reasonable legal and other expenses (including the cost of
any investigation preparation and travel in connection therewith) incurred in connection therewith,
as such expenses are incurred. The reimbursement obligations of the Company under this paragraph
shall be in addition to any liability which the Company may otherwise have, shall extend upon the
same terms and conditions to any Affiliates of the Purchasers who are actually named in such
action, proceeding or investigation, and partners, directors, agents, employees and controlling
persons (if any), as the case may be, of the Purchasers and any such Affiliate, and shall be
binding upon and inure to the benefit of any successors, assigns, heirs and personal
representatives of the Company, the Purchasers and any such Affiliate and any such Person. The
Company also agrees that neither the Purchasers nor any such Affiliates, partners, directors,
agents, employees or controlling persons shall have any liability to the Company or any Person
asserting claims on behalf of or in right of the Company solely as a result of acquiring the
Securities under this Agreement, except if such claim arises primarily from 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.



4.9 Indemnification of Purchasers. Subject to the provisions of this Section 4.9, 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, 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 (i) for any settlement by a Purchaser Party effected without
the Company’s prior written consent, which shall not be unreasonably withheld or delayed; or (ii)
to the extent, but only to the extent that a loss, claim, damage or liability is attributable to
(A) 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, (B) any
violations by the Purchaser of state or federal securities laws or (C) any conduct by such
Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance.



4.10 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.




4.11 Listing of Common Stock.(a) The Company hereby agrees to use best efforts to maintain
the listing of the Common Stock on a Trading Market, and as soon as reasonably practicable
following the Closing (but not later than the earlier of the Effective Date and the first
anniversary of the Closing Date) to list 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 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 on such other Trading Market as promptly as possible. The Company will 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.



4.12 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.



4.13 Participation in Future Financing.



(a) From the date hereof until the date that is the 15th month anniversary of the
Closing Date, upon any issuance by the Company or any of its Subsidiaries of Common Stock or Common
Stock Equivalents for cash consideration (a “Subsequent Financing”), each Purchaser shall have the
right to participate up to its Pro Rata Portion (as defined below) of 50% of the Subsequent
Financing (the “Participation Maximum”) on the same terms, conditions and price provided for in the
Subsequent Financing.



(b) At least 5 Trading Days prior to the closing of 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 written request of a
Purchaser, and only upon a written request by such Purchaser, for a Subsequent Financing Notice,
the Company shall promptly, but no later than 1 Trading Day after such request, deliver a
Subsequent Financing Notice to such Purchaser. 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 deliver written
notice to the Company by not later than 5:30 p.m. (New York City time) on the 5th Trading Day after
such Purchaser has received the Pre-Notice that the Purchaser is willing to participate in the
Subsequent Financing, the amount of the Purchaser’s participation, and that the Purchaser has such
funds ready, willing, and available for investment on the terms set forth in the Subsequent
Financing Notice (a “Purchase Notice”). If the Company does not receive a Purchase Notice from a
Purchaser by such 5th Trading Day, such Purchaser shall be deemed to have notified the Company that
it does not elect to participate.



(d) If by 5:30 p.m. (New York City time) on the 5th Trading Day after all of the Purchasers
have received the Pre-Notice, Purchase Notices indicating in the aggregate less than the
Participation Maximum 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 by 5:30 p.m. (New York City time) on the 5th Trading Day after all of the Purchasers
have received the Pre-Notice, the Company receives Purchase Notices from Purchasers seeking to
purchase more than the aggregate amount of the Participation Maximum, each such Purchaser shall
have the right to purchase the greater of (a) their Pro Rata Portion (as defined below) of the
Participation Maximum and (b) the Pro Rata Portion of the sum of (i) the Participation Maximum and
(ii) the portion of the Participation Maximum not subject to a Purchase Notice. “Pro Rata Portion”
is the ratio of (x) the Subscription Amount of Securities purchased on the Closing Date by a
Purchaser and (y) the sum of the aggregate Subscription Amounts of Securities purchased on the
Closing Date by all Purchasers.



(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 4.13, 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 60 Trading Days after the
date of the initial Subsequent Financing Notice.



(g) Notwithstanding the foregoing, this Section 4.13 shall not apply in respect of (i) an
Exempt Issuance or (ii) an underwritten public offering of Common Stock.



4.14 Subsequent Equity Sales.




(a) From the date hereof until 180 days after the Effective Date, neither the Company
nor any Subsidiary shall issue shares of Common Stock or Common Stock Equivalents; provided,
however, the 180 day period set forth in this Section 4.14 shall be extended for the number
of Trading Days during such period in which (i) trading in the Common Stock is suspended by
any Trading Market, or (ii) following the Effective Date, the Registration Statement is not
effective or the prospectus included in the Registration Statement may not be used by the
Purchasers for the resale of the Shares and Warrant Shares.




(b) From the date hereof until such time as no Purchaser holds any of the Securities,
the Company shall be prohibited from effecting or entering into an agreement to effect any
Subsequent Financing involving a Variable Rate Transaction. “Variable Rate Transaction”
means a transaction in which the Company issues or sells (i) any debt or equity securities
that are convertible into, exchangeable or exercisable for, or include the right to receive
additional shares of Common Stock either (A) at a conversion, exercise or exchange rate or
other price that is based upon and/or varies with the trading prices of or quotations for
the shares of Common Stock at any time after the initial issuance of such debt or equity
securities, or (B) with a conversion, exercise or exchange price that is subject to being
reset at some future date after the initial issuance of such debt or equity security or upon
the occurrence of specified or contingent events directly or indirectly related to the
business of the Company or the market for the Common Stock or (ii) enters into any
agreement, including, but not limited to, an equity line of credit, whereby the Company may
sell securities at a future determined price. Any Purchaser shall be entitled to obtain
injunctive relief against the Company to preclude any such issuance, which remedy shall be
in addition to any right to collect damages.




(c) Notwithstanding the foregoing, this Section 4.14 shall not apply in respect of an
Exempt Issuance, except that no Variable Rate Transaction shall be an Exempt Issuance.



4.15 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 or other Person
acting on its behalf or pursuant to any understanding with it will execute any Short Sales during
the period commencing at the beginning of the Discussion Time and ending at the time that 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 all disclosures
made to it in connection with this transaction (including the existence and terms of this
transaction). Each Purchaser understands and acknowledges, severally and not jointly with any
other Purchaser, that the Commission currently takes the position that coverage of short sales of
shares of the Common Stock “against the box” prior to the Effective Date of the Registration
Statement with the Securities is a violation of Section 5 of the Securities Act, as set forth in
Item 65, Section A, of the Manual of Publicly Available Telephone Interpretations, dated July 1997,
compiled by the Office of Chief Counsel, Division of Corporation Finance. 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.



4.16 Delivery of Securities After Closing. 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.



4.17 Form D; Blue Sky Filings. The Company agrees to timely file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof, promptly upon request of
any Purchaser. The Company shall take such action as the Company shall reasonably determine is
necessary in order to obtain an exemption for, or to qualify the Securities for, sale to the
Purchasers at the Closing under applicable securities or “Blue Sky” laws of the states of the
United States, and shall provide evidence of such actions promptly upon request of any Purchaser.
Each Purchaser shall take all commercially reasonable actions that are reasonably requested by the
Company related to, or to effectuate, the filing of a Form D or any filing required pursuant to the
“Blue Sky” laws of the states of the United States which, for purposes of clarity, shall not
include the payment of any fees by such Purchaser.



4.18 Capital Changes. Until the one year anniversary of the Effective 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.



4.19 Investment Company. 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.



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 March 15, 2007; 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.



5.3 Entire Agreement. The Transaction Documents and all of the confidentiality agreements by
and between the Company and the Purchasers listed on Schedule 3.1(y), together with the exhibits
and schedules thereto, contain the entire understanding of the parties with respect to the subject
matter hereof and thereof and supersede all prior agreements and understandings, oral or written,
with respect to such matters, which the parties acknowledge have been merged into such documents,
exhibits and schedules.



5.4 Notices. Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be in writing and shall be deemed given and effective on the
earliest of (a) the date of transmission, if such notice or communication is delivered via
facsimile at the facsimile number set forth on the signature pages attached hereto prior to 5:30
p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of
transmission, if such notice or communication is delivered via facsimile at the facsimile number
set forth on the signature pages attached hereto on a day that is not a Trading Day or later than
5:30 p.m. (New York City time) on any Trading Day, (c) the second Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service, or (d) upon actual
receipt by the party to whom such notice is required to be given. The address for such notices and
communications shall be as set forth on the signature pages attached hereto.



5.5 Amendments; Waivers. No provision of this Agreement may be waived or amended except in a
written instrument signed, in the case of an amendment, by the Company and Purchasers holding at
least 67% of the then outstanding Securities 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 Purchasers holding at
least 67% of the then outstanding Securities (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
4.9.



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. The parties hereby waive all rights to a trial by jury. 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 Shares and Warrant Shares until the 3 year anniversary of the Closing Date.



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



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



5.13 Rescission and Withdrawal Right. Notwithstanding anything to the contrary contained in
(and without limiting any similar provisions of) any of the other Transaction Documents, whenever
any Purchaser exercises a right, election, demand or option under a Transaction Document and the
Company does not timely perform its related obligations within the periods therein provided, then
such Purchaser may rescind or withdraw, in its sole discretion from time to time upon written
notice to the Company, any relevant notice, demand or election in whole or in part without
prejudice to its future actions and rights; provided, however, in the case of a rescission of an
exercise of a Warrant, the Purchaser shall be required to return any shares of Common Stock
delivered in connection with 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 agrees to waive and not to assert in
any action for specific performance of any such obligation the defense that a remedy at law would
be adequate.



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
any of the Purchasers but only the Placement Agent. 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.



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 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.



(Signature Pages Follow)






1






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.



	 	 	 	 	 
	NEOSE TECHNOLOGIES, INC.
	 	Address for Notice:
	 
	 	 	 	 
	
 
	 	102 Rock Road
	 	

	 
	 	 	 	 
	By: /s/ George J. Vergis Horsham, Pennsylvania 19044

	Name: George J. Vergis, Ph.D. Facsimile: (215) 315-9100

	Title: President and CEO Attention: General Counsel

	 
	 	 	 	 
	With a copy to (which shall not constitute notice):
	 	 
	 
	 	 	 	 
	Barry M. Abelson, Esq.

Pepper Hamilton LLP

3000 Two Logan Square

	 	





	 	





	 
	 	 	 	 
	18th and Arch Streets
	 	 
	 
	 	 	 	 
	Philadelphia, PA 19103

	 	

	 	







[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGE FOR PURCHASER FOLLOWS]





2






[PURCHASER SIGNATURE PAGES TO NTEC 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: MHR Capital Partners (100) LP


Signature of Authorized Signatory of Purchaser: /s/ Hal Goldstein


Name of Authorized Signatory: MHR Advisors LLC, by Hal Goldstein


Title of Authorized Signatory: Managing Principal


Email Address of Purchaser: hgoldstein@mhrfund.com


Fax Number of Purchaser: 212-262-9356


Address for Notice of Purchaser:



40 West 57th Street, 24th Floor



New York, NY 10019



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



Subscription Amount: $517,130



Units:



Shares: 256,005



Warrant Shares: 115,202



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



3




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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: MHR Capital Partners Master Account LP


Signature of Authorized Signatory of Purchaser: /s/ Hal Goldstein


Name of Authorized Signatory: MHR Advisors LLC, by Hal Goldstein


Title of Authorized Signatory: Managing Principal


Email Address of Purchaser: hgoldstein@mhrfund.com


Fax Number of Purchaser: 212-262-9356


Address for Notice of Purchaser:



40 West 57th Street, 24th Floor



New York, NY 10019



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



Subscription Amount: $4,482,870



Units:



Shares: 2,219,242



Warrant Shares: 998,659



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



4




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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: Domain Partners V, L.P.


Signature of Authorized Signatory of Purchaser: /s/ Kathleen K. Schoemaker


Name of Authorized Signatory: Kathleen K. Schoemaker


Title of Authorized Signatory: Managing Member


Email Address of Purchaser: schoemaker@domainvc.com


Fax Number of Purchaser: 609-683-4581


Address for Notice of Purchaser:



c/o Domain Associates



One Palmer Square, Suite 515



Princeton, New Jersey 03542



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



c/o Domain Associates



One Palmer Square, Suite 515



Princeton, New Jersey 03542



Subscription Amount: $4,884,612.50



Units: 2,418,125



Shares: 2,418,125



Warrant Shares: 1,088,156



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• By One Palmer Square Associates V, LLC.



5




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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: DP V Associates, L.P.


Signature of Authorized Signatory of Purchaser: /s/ Kathleen K. Schoemaker


Name of Authorized Signatory: Kathleen K. Schoemaker


Title of Authorized Signatory: Managing Member


Email Address of Purchaser: schoemaker@domainvc.com


Fax Number of Purchaser: 609-683-4581


Address for Notice of Purchaser:



c/o Domain Associates



One Palmer Square, Suite 515



Princeton, New Jersey 03542



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



c/o Domain Associates



One Palmer Square, Suite 515



Princeton, New Jersey 03542



Subscription Amount: $115,388.46



Units: 57,123



Shares: 57,123



Warrant Shares: 25,705



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• By One Palmer Square Associates V, LLC.



6




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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: BB Biotech Ventures II LP


Signature of Authorized Signatory of Purchaser: /s/ Ben Morgan


Name of Authorized Signatory: Ben Morgan

Title of Authorized Signatory: Director of its General Partner


Email Address of Purchaser: chris_cochrane@ntrs.com


Fax Number of Purchaser: +44 (0) 1481 745051


Address for Notice of Purchaser:



Northern Trust International Fund Administration Services (Guernsey) Limited



Po Box 255, Trafalger Court, Les Banques



St. Peter Port, Guernsey GY1 3QL



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



c/o Domain Associates



One Palmer Square, Suite 515



Princeton, New Jersey 03542



Subscription Amount: $5,000,000.00



Units: 2,475,247



Shares: 2,475,247



Warrant Shares: 1,113,861



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



7




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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: Visium Balanced Fund, LP


Signature of Authorized Signatory of Purchaser: /s/ Mark Gottlieb


Name of Authorized Signatory: Mark Gottlieb


Title of Authorized Signatory: CCO


Email Address of Purchaser: mgottlieb@visiumfunds.com


Fax Number of Purchaser: 646-840-5808


Address for Notice of Purchaser:



950 Third Avenue, 29th Floor



New York, NY 10022



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



See Attached Delivery Instructions.



Subscription Amount: $1,050,468.68



Units: 520,034



Shares: 520,034



Warrant Shares: 234,015



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



8




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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: Visium Balanced Offshore Fund, LTD


Signature of Authorized Signatory of Purchaser: /s/ Mark Gottlieb


Name of Authorized Signatory: Mark Gottlieb


Title of Authorized Signatory: CCO


Email Address of Purchaser: mgottlieb@visiumfunds.com


Fax Number of Purchaser: 646-840-5808


Address for Notice of Purchaser:



950 Third Avenue, 29th Floor



New York, NY 10022



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



See Attached Delivery Instructions.



Subscription Amount: $1,671,200.54



Units: 827,327



Shares: 827,327



Warrant Shares: 372,297



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



9




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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: Visium Long Bias Fund, LP


Signature of Authorized Signatory of Purchaser: /s/ Mark Gottlieb


Name of Authorized Signatory: Mark Gottlieb


Title of Authorized Signatory: CCO


Email Address of Purchaser: mgottlieb@visiumfunds.com


Fax Number of Purchaser: 646-840-5808


Address for Notice of Purchaser:



950 Third Avenue, 29th Floor



New York, NY 10022



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



See Attached Delivery Instructions.



Subscription Amount: $473,144.60



Units: 234,230



Shares: 234,230



Warrant Shares: 105,404



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



10




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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: Visium Long Bias Offshore Fund, LTD


Signature of Authorized Signatory of Purchaser: /s/ Mark Gottlieb


Name of Authorized Signatory: Mark Gottlieb


Title of Authorized Signatory: CCO


Email Address of Purchaser: mgottlieb@visiumfunds.com


Fax Number of Purchaser: 646-840-5808


Address for Notice of Purchaser:



950 Third Avenue, 29th Floor



New York, NY 10022



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



See Attached Delivery Instructions.



Subscription Amount: $1,515,799.92



Units: 750,396



Shares: 750,396



Warrant Shares: 337,678



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



11




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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: Atlas Master Fund, Ltd


Signature of Authorized Signatory of Purchaser: /s/ Scott Schroeder


Name of Authorized Signatory: Scott Schroeder


Title of Authorized Signatory: Authorized Signatory


Email Address of Purchaser: kjohansen@bamfunds


Fax Number of Purchaser: 212-808-2301


Address for Notice of Purchaser:



c/o Balyasny Asset Management



135 E 57th St, 27th Fl.



New York, NY 10022



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



Subscription Amount: $289,387.22



Units: 143,261



Shares: 143,261



Warrant Shares: 64,468



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



12




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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: Tang Capital Partners, LP


Signature of Authorized Signatory of Purchaser: /s/ Kevin C. Tang


Name of Authorized Signatory: Kevin C. Tang

Title of Authorized Signatory: Managing Director

Email Address of Purchaser: Kevin@tangcapital.com


Fax Number of Purchaser: 858-200-3837


Address for Notice of Purchaser:



4401 Eastgate Mall



San Diego, CA 92121



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



Same.



Subscription Amount: $5,000,000



Units: 2,475,248



Shares: 2,475,248



Warrant Shares: 1,113,861



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



13




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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: HFR SHC Aggressive Master Trust


Signature of Authorized Signatory of Purchaser: /s/ Dora Hines


Name of Authorized Signatory: Dora Hines


Title of Authorized Signatory: Attoney-in-fact*


Email Address of Purchaser: data_ops@hfr.com


Fax Number of Purchaser: 312-327-0435


Address for Notice of Purchaser:



HFR Asset Management, LLC



10 S. Riverside Plaza, Suite 700



Chicago, Illinois 60606



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



Butterfield Fund Services (Bermuda) Limited



65 Front Street



Hamilton HM11 Bermuda



Re: HFR SHC Aggressive Master Trust



Subscription Amount: $199,980



Units: 99,000



Shares: 99,000



Warrant Shares: 44,550



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• For and on behalf of HFR Asset Management, LLC as attorney in fact.



14




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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: Caduceus Capital Master Fund Limited


Signature of Authorized Signatory of Purchaser: /s/ Samuel D. Isaly


Name of Authorized Signatory: Samuel D. Isaly


Title of Authorized Signatory: Managing Partner, Orbimed Advisors LLC


Email Address of Purchaser: kanareka@orbimed.com


Fax Number of Purchaser: 212-739-6444


Address for Notice of Purchaser:



c/o OrbiMed Advisors LLC



767 3rd Avenue, 30th Floor



New York, NY 10017



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



Subscription Amount: $1,565,500



Units: 775,000



Shares: 775,000



Warrant Shares: 348,750



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



15




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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: Caduceus Capital II, L.P.


Signature of Authorized Signatory of Purchaser: /s/ Samuel D. Isaly


Name of Authorized Signatory: Samuel D. Isaly


Title of Authorized Signatory: Managing Partner, Orbimed Advisors LLC


Email Address of Purchaser: kanareka@orbimed.com


Fax Number of Purchaser: 212-739-6444


Address for Notice of Purchaser:



c/o OrbiMed Advisors LLC



767 3rd Avenue, 30th Floor



New York, NY 10017



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



Subscription Amount: $989,800



Units: 490,000



Shares: 490,000



Warrant Shares: 220,500



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



16




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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: UBS Eucalyptus Fund, LLC


Signature of Authorized Signatory of Purchaser: /s/ Samuel D. Isaly


Name of Authorized Signatory: Samuel D. Isaly


Title of Authorized Signatory: Managing Partner, Orbimed Advisors LLC


Email Address of Purchaser: kanareka@orbimed.com


Fax Number of Purchaser: 212-739-6444


Address for Notice of Purchaser:



c/o OrbiMed Advisors LLC



767 3rd Avenue, 30th Floor



New York, NY 10017



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



Subscription Amount: $1,131,200



Units: 560,000



Shares: 560,000



Warrant Shares: 252,000



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



17




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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: PW Eucalyptus Fund, Ltd.


Signature of Authorized Signatory of Purchaser: /s/ Samuel D. Isaly


Name of Authorized Signatory: Samuel D. Isaly


Title of Authorized Signatory: Managing Partner, Orbimed Advisors LLC


Email Address of Purchaser: kanareka@orbimed.com


Fax Number of Purchaser: 212-739-6444


Address for Notice of Purchaser:



c/o OrbiMed Advisors LLC



767 3rd Avenue, 30th Floor



New York, NY 10017



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



Subscription Amount: $113,120



Units: 56,000



Shares: 56,000



Warrant Shares: 25,200



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



18




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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: Abingworth Bioventures V L.P.

	 

	Signature of Authorized Signatory of Purchaser: /s/ James Abell*

	 

	Name of Authorized Signatory: James Abell

	 

	Title of Authorized Signatory: Member, Abingworth L.L.P.

	 

	Email Address of Purchaser: abell@abingworth.com

	 

	Fax Number of Purchaser: +44 207 534 1539

	 

	Address for Notice of Purchaser:

	38 Jermyn Street

London SW1Y 6DN

United Kingdom

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

	 

	Subscription Amount: $2,400,000.38

	 

	Units: 1,188,119

	 

	Shares: 1,188,119

	 

	Warrant Shares: 534,653

	 







EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• On Behalf of Abingworth L.L.P. in its capacity as Manager of Abingworth Bioventures V L.P.



19




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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: Abingworth Bioequities Master Fund Limited

	 

	Signature of Authorized Signatory of Purchaser: /s/ James Abell

	 

	Name of Authorized Signatory: James Abell

	 

	Title of Authorized Signatory: Authorized Signatory

	 

	Email Address of Purchaser: abell@abingworth.com

	 

	Fax Number of Purchaser: +44 207 534 1539

	 

	Address for Notice of Purchaser:

	38 Jermyn Street

London SW1Y 6DN

United Kingdom

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

	 

	Subscription Amount: $2,600,000.58

	 

	Units: 1,287,129

	 

	Shares: 1,287,129

	 

	Warrant Shares: 579,208

	 







EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



20




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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: Baker/Tisch Investments, L.P.
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Signature of Authorized Signatory of Purchaser: /s/ Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Name of Authorized Signatory: Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Title of Authorized Signatory:

	 	*
	 	

	
 
	 	 
	 	 






Email Address of Purchaser: lkirbyebbinvestments.com


Fax Number of Purchaser: 212-339-5688


Address for Notice of Purchaser:



667 Madison Ave, 17th Floor



New York, NY 10021



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



Subscription Amount: $46,431.76



Units: 22,986



Shares: 22,986



Warrant Shares: 10,344



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• Julian Baker is the Managing Member of Baker/Tisch Capital (GP), LLC, which is the General
Partner of Baker/Tisch Capital, L.P., which is the General Partner of Baker/Tisch Investments, L.P.



21




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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: Baker Bros. Investments II, L.P.
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Signature of Authorized Signatory of Purchaser: /s/ Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Name of Authorized Signatory: Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Title of Authorized Signatory:

	 	*
	 	

	
 
	 	 
	 	 






Email Address of Purchaser: lkirbyebbinvestments.com


Fax Number of Purchaser: 212-339-5688


Address for Notice of Purchaser:



667 Madison Ave, 17th Floor



New York, NY 10021



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



Subscription Amount: $5,492.43



Units: 2,719



Shares: 2,719



Warrant Shares: 1,224



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• Julian Baker is the Managing Member of Baker Bros. Capital (GP), LLC, which is the General
Partner of Baker Bros. Capital, L.P., which is the General Partner of Baker Bros. Investments II,
L.P.



22




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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: Baker Biotech Fund I, L.P.
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Signature of Authorized Signatory of Purchaser: /s/ Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Name of Authorized Signatory: Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Title of Authorized Signatory:

	 	*
	 	

	
 
	 	 
	 	 






Email Address of Purchaser: lkirbyebbinvestments.com


Fax Number of Purchaser: 212-339-5688


Address for Notice of Purchaser:



667 Madison Ave, 17th Floor



New York, NY 10021



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



	 	 	 
	Subscription Amount: $909,606

	 	

	 

	 	

	Units: Cert. 1 – 239,889Cert. 2 – 210,411

	 	

	 
	 	 
	 

	 
	 	 
	Shares: Cert. 1 – 239,889Cert. 2 – 210,411

	 	

	 
	 	 
	 

	 
	 	 
	Warrant Shares: Cert. 1 – 107,950

	 	Cert. 2 – 94,685
	 

	 	 






EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• Julian Baker is the Managing Member of Baker Biotech Capital (GP), LLC, which is the General
Partner of Baker Biotech Capital, L.P., which is the General Partner of Baker Biotech Fund I, L.P.



23




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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: Baker Brothers Life Sciences, L.P.
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Signature of Authorized Signatory of Purchaser: /s/ Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Name of Authorized Signatory: Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Title of Authorized Signatory:

	 	*
	 	

	
 
	 	 
	 	 






Email Address of Purchaser: lkirbyebbinvestments.com


Fax Number of Purchaser: 212-339-5688


Address for Notice of Purchaser:



667 Madison Ave, 17th Floor



New York, NY 10021



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



Subscription Amount: $2,460,034.83



Units: 1,217,839



Shares: 1,217,839



Warrant Shares: 548,028



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• Julian Baker is the Managing Member of Baker Brothers Life Sciences Capital (GP), LLC, which is
the General Partner of Baker Brothers Life Sciences Capital, L.P., which is the General Partner of
Baker Brothers Life Sciences, L.P.



24




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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: 14159, L.P.

	 	

	 	

	 

	 	 
	 	 
	 
	 	 	 	 
	Signature of Authorized Signatory of Purchaser: /s/ Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Name of Authorized Signatory: Julian Baker
	 	 
	 
	 	 	 	 
	 

	 
	 	 	 	 
	Title of Authorized Signatory:

	 	*
	 	

	 

	 	 
	 	 






Email Address of Purchaser: lkirbyebbinvestments.com


Fax Number of Purchaser: 212-339-5688


Address for Notice of Purchaser:



667 Madison Ave, 17th Floor



New York, NY 10021



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



Subscription Amount: $78,436.54



Units: 38,830



Shares: 38,830



Warrant Shares: 17,473



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• Julian Baker is the Managing Member of 14159 Capital (GP), LLC, which is the General Partner of
14159 Capital, L.P., which is the General Partner of 14159, L.P.



25




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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: MPM BioEquities Investors Fund LLC


Signature of Authorized Signatory of Purchaser: /s/ Kurt von Emster


Name of Authorized Signatory: Kurt von Emster


Title of Authorized Signatory: Member


Email Address of Purchaser: kvonemster@mpmcapital.com


Fax Number of Purchaser: 650-553-3360


Address for Notice of Purchaser:



601 Gateway Blvd, Suite 350



South San Francisco, CA 94080



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



Attn: Elsa Gelin



The John Hancock Tower



200 Clarendon Street, 54th Flr



Boston, MA 02116



Subscription Amount: $13,164.34



Units: 6,517



Shares: 6,517



Warrant Shares: 2,932



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



26




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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: MPM BioEquities Master Fund LP

	 	

	 
	 	 
	 

	 
	 	 
	Signature of Authorized Signatory of Purchaser: /s/ Kurt von Emster*

	 
	 	 
	 

	 
	 	 
	Name of Authorized Signatory: Kurt von Emster

	 	

	 
	 	 
	 

	 
	 	 
	Title of Authorized Signatory: Manager

	 	

	 

	 	 






Email Address of Purchaser: kvonemster@mpmcapital.com


Fax Number of Purchaser: 650-553-3360


Address for Notice of Purchaser:



601 Gateway Blvd, Suite 350



South San Francisco, CA 94080



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



Attn: Elsa Gelin



The John Hancock Tower



200 Clarendon Street, 54th Flr



Boston, MA 02116



Subscription Amount: $986,836.66



Units: 488,533



Shares: 488,533



Warrant Shares: 219,840



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• As Manager of MPM BioEquities GP, LLC, which is the General Partner of MPM BioEquities GP, L.P.
which is the General Partner of MPM BioEquities Master Fund LP.



27




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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: Potomac Capital Partners LP


Signature of Authorized Signatory of Purchaser: /s/ Kenneth Berkow


Name of Authorized Signatory: Kenneth Berkow


Title of Authorized Signatory: CFO


Email Address of Purchaser: kberkow@potomaccap.com


Fax Number of Purchaser: 212-521-5116


Address for Notice of Purchaser:



c/o Potomac Capital Management



825 Third Avenue, 33rd Floor



New York, NY 10022



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



Subscription Amount: $626,690.86



Units: 310,243



Shares: 310,243



Warrant Shares: 139,609



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



28




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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: Potomac Capital International Ltd.


Signature of Authorized Signatory of Purchaser: /s/ Kenneth Berkow


Name of Authorized Signatory: Kenneth Berkow


Title of Authorized Signatory: CFO


Email Address of Purchaser: kberkow@potomaccap.com


Fax Number of Purchaser: 212-521-5116


Address for Notice of Purchaser:



c/o Potomac Capital Management



825 Third Avenue, 33rd Floor



New York, NY 10022



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



Subscription Amount: $429,730.75



Units: 212,738



Shares: 212,738



Warrant Shares: 95,732



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



29




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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: Pleiades Investment Partners LP


Signature of Authorized Signatory of Purchaser: /s/ Kenneth Berkow


Name of Authorized Signatory: Kenneth Berkow


Title of Authorized Signatory: CFO


Email Address of Purchaser: kberkow@potomaccap.com


Fax Number of Purchaser: 212-521-5116


Address for Notice of Purchaser:



c/o Potomac Capital Management



825 Third Avenue, 33rd Floor



New york, NY 10022



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



Subscription Amount: $443,578.39



Units: 219,593



Shares: 219,593



Warrant Shares: 98,817



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



30




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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: Medical Strategy GmbH on behalf of PHARMA/wHEALTH


Signature of Authorized Signatory of Purchaser: /s/ Dr. Michael Fischer


Name of Authorized Signatory: Dr. Michael Fischer


Title of Authorized Signatory: CEO


Email Address of Purchaser: smeyer@medicalstrategy.de


Fax Number of Purchaser: +49 89 2727 2413


Address for Notice of Purchaser:



Medical Strategy GmbH



Elisabethstrasse 28



80796 Munich



Germany



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



Oppenheim Pramerica Asset Management S.à r.l.



Attn: Julia Brauckmann



4, rue Jean Monnet



2180 Luxembourg



Luxembourg



Subscription Amount: $250,000



Units: 123,762



Shares: 123,762



Warrant Shares: 55,693



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



31




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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: Oppenheim Pramerica Asset Management S.à r.l.*

	 

	Signature of Authorized Signatory of Purchaser: /s/ Max von Frantzius/s/ Johann Will

	 

	Name of Authorized Signatory: Max von FrantziusJohann Will

	 

	Title of Authorized Signatory: Vice PresidentSenior Associate

	 

	Email Address of Purchaser: max.vonfrantzius@oppenheimpramerica.lu

johann.will@ oppenheimpramerica.lu

	 

	Fax Number of Purchaser: +352 221522 500

	 

	Address for Notice of Purchaser:

	4, rue Jean Monnet

2180 Luxembourg

Luxembourg

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

	 

	Subscription Amount: $750,000

	 

	Units: 371,287

	 

	Shares: 371,287

	 

	Warrant Shares: 167,079

	 







EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• On behalf of FCP OP MEDICAL BioHe@lth-Trends.



32




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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: Cranshire Capital, L.P.


Signature of Authorized Signatory of Purchaser: /s/ Mitchell P. Kopin


Name of Authorized Signatory: Mitchell P. Koppin

Title of Authorized Signatory: President – Downsview Capital The General Partner


Email Address of Purchaser: mkoppin@cranshirecapital.com


Fax Number of Purchaser: 847-562-9031


Address for Notice of Purchaser:



3100 Dundee Road, Suite703



Northbrook, IL 60062



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



Subscription Amount: $300,000



Units: 148,515



Shares: 148,515



Warrant Shares: 66,832



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



33




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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: Otago Partners, LLC


Signature of Authorized Signatory of Purchaser: /s/ Lindsay A. Rosenwald, MD


Name of Authorized Signatory: Lindsay A. Rosenwald, MD


Title of Authorized Signatory: Managing Member


Email Address of Purchaser: mchille@paramountbio.com


Fax Number of Purchaser: 212-554-4355


Address for Notice of Purchaser:



787 7th Ave, 48th Fl.



New York, NY 10019



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



Subscription Amount: $150,000



Units: 74,257



Shares: 74,257



Warrant Shares: 33,416



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



34




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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: Aries Domestic Fund, LP


Signature of Authorized Signatory of Purchaser: /s/ Lindsay A. Rosenwald, MD


Name of Authorized Signatory: Lindsay A. Rosenwald, MD


Title of Authorized Signatory: Chairman, Paramount Biocapital Asset Management Inc.*


Email Address of Purchaser: pjohn@paramountbio.com


Fax Number of Purchaser: 212-554-4355


Address for Notice of Purchaser:



787 7th Ave, 48th Fl.



New York, NY 10019



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



Subscription Amount: $46,500



Units: 23,020



Shares: 23,020



Warrant Shares: 10,359



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• General Partner of Aries Domestic Fund, LP.



35




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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: Aries Domestic Fund II, LP


Signature of Authorized Signatory of Purchaser: /s/ Lindsay A. Rosenwald, MD


Name of Authorized Signatory: Lindsay A. Rosenwald, MD


Title of Authorized Signatory: Chairman, Paramount Biocapital Asset Management Inc.*


Email Address of Purchaser: pjohn@paramountbio.com


Fax Number of Purchaser: 212-554-4355


Address for Notice of Purchaser:



787 7th Ave, 48th Fl.



New York, NY 10019



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



Subscription Amount: $33,000



Units: 16,337



Shares: 16,337



Warrant Shares: 7,351



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• General Partner of Aries Domestic Fund II, LP.



36




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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: The Aries Master Fund II


Signature of Authorized Signatory of Purchaser: /s/ Lindsay A. Rosenwald, MD


Name of Authorized Signatory: Lindsay A. Rosenwald, MD


Title of Authorized Signatory: Chairman, Paramount Biocapital Asset Management Inc.*


Email Address of Purchaser: pjohn@paramountbio.com


Fax Number of Purchaser: 212-554-4355


Address for Notice of Purchaser:



787 7th Ave, 48th Fl.



New York, NY 10019



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



Subscription Amount: $70,500



Units: 34,901



Shares: 34,901



Warrant Shares: 15,705



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



• Investment Manager of The Aries Master Fund II.



37




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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: Arlene Holden Trust


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $161,600



Units: 80,000



Shares: 80,000



Warrant Shares: 36,000



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



38




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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: Douglas Sharpe Crut


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $5,454



Units: 2,700



Shares: 2,700



Warrant Shares: 1,215



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



39




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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: Douglas Sharpe Trust


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $51,510



Units: 25,500



Shares: 25,500



Warrant Shares: 11,475



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



40




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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: Sharpe Family Foundation


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $75,952



Units: 37,600



Shares: 37,600



Warrant Shares: 16,920



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



41




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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: Henry Sharpe


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $69,185



Units: 34,250



Shares: 34,250



Warrant Shares: 15,413



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Henry Sharpe Crut


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $5,454



Units: 2,700



Shares: 2,700



Warrant Shares: 1,215



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Henry Sharpe Trust


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $155,540



Units: 77,000



Shares: 77,000



Warrant Shares: 34,650



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Sharpe 1990 Grandchildrens Trust


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $76,659



Units: 37,950



Shares: 37,950



Warrant Shares: 17,078



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Peggy Sharpe Trust


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $103,828



Units: 51,400



Shares: 51,400



Warrant Shares: 23,130



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Sarah Sharpe Crut


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $20,604



Units: 10,200



Shares: 10,200



Warrant Shares: 4,590



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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[SIGNATURE PAGES CONTINUE][PURCHASER SIGNATURE PAGES TO NTEC 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: Sarah Sharpe Trust


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $62,014



Units: 30,700



Shares: 30,700



Warrant Shares: 13,815



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Matthews Intl. Corp. Employees Retirement Plan


Signature of Authorized Signatory of Purchaser: /s/ Mathews Arens


Name of Authorized Signatory: Mathews Arens


Title of Authorized Signatory: EVP, Senior Portfolio Manager


Email Address of Purchaser: marens@koppinv.com


Fax Number of Purchaser: 952-841-0407


Address for Notice of Purchaser:



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



Subscription Amount: $121,799.94



Units: 60,297



Shares: 60,297



Warrant Shares: 27,134



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Iroquois Master Fund Ltd.


Signature of Authorized Signatory of Purchaser: /s/ Joshua Silverman


Name of Authorized Signatory: Joshua Silverman


Title of Authorized Signatory: Authorized Signator


Email Address of Purchaser: jsilverman@icfund.com


Fax Number of Purchaser: 212-207-3452


Address for Notice of Purchaser:



641 Lexington Ave. 26th Floor



New York, NY 10022



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



Subscription Amount: $250,000



Units: 123,762



Shares: 123,762



Warrant Shares: 55,693



EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



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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: Bristol Investment Fund, Ltd.

	 

	Signature of Authorized Signatory of Purchaser: /s/ Paul Kessler

	 

	Name of Authorized Signatory: Paul Kessler

	 

	Title of Authorized Signatory: Director

	 

	Email Address of Purchaser: pkessler@bristolcompanies.netamy@bristolcompanies.net

	 

	Fax Number of Purchaser: (310) 696-0334

	 

	Address for Notice of Purchaser:

	c/o Bristol Capital Advisors, LLC

10990 Wilshire Boulevard, Suite 1410

Los Angeles, CA 90024

Attn: Amy Wang, Esq.

Tel: (310) 696-0333

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

	Doreen Pappas

Citigroup – Prime Brokerage

390 Greenwich St., 3rd Floor

New York, NY 10013

Tel: (212) 723-4270

Subscription Amount: $500,000

	 

	Units: 247,525

	 

	Shares: 247,525

	 

	Warrant Shares: 111,368

	 







EIN Number: [PROVIDE THIS UNDER SEPARATE COVER]



[SIGNATURE PAGES CONTINUE]





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