Exhibit
4.1


 




 


 





PREFERRED
STOCK AND WARRANT PURCHASE AGREEMENT




by and among


 


Genetronics
Biomedical Corporation, as Issuer and Seller


 


and


 


SCO Capital
Partners LLC, ProMed Partners, L.P., SDS Merchant Fund, LP


 


and the other
parties named herein, as Purchasers


 


with respect
to Seller’s


 


Series A
Cumulative Convertible Preferred Stock


 


Series B
Cumulative Convertible Preferred Stock


 


and Series A
Warrants and Series B Warrants to Purchase Common Stock


 


 


July 14, 2003


 


 




 




















 


Table of Exhibits and Schedules


 


	
  Exhibit A-1

  	
   

  	
  Form of Certificate of Designation of the
  Series A Cumulative Convertible Preferred Stock

  
	
   

  	
   

  	
   

  
	
  Exhibit A-2

  	
   

  	
  Form of Certificate of Designation of the
  Series B Cumulative Convertible Preferred Stock

  
	
   

  	
   

  	
   

  
	
  Exhibit B-1

  	
   

  	
  Form of Series A Warrant

  
	
   

  	
   

  	
   

  
	
  Exhibit B-2

  	
   

  	
  Form of Series B Warrant

  
	
   

  	
   

  	
   

  
	
  Exhibit C

  	
   

  	
  Form of Investor Rights Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit D

  	
   

  	
  Form of Opinion of Seller’s Counsel

  
	
   

  	
   

  	
   

  
	
  Exhibit E

  	
   

  	
  Form of Closing Escrow Agreement

  
	
   

  	
   

  	
   

  
	
  Exhibit F

  	
   

  	
  Form of Post-Closing Escrow Agreement

  
	
   

  	
   

  	
   

  
	
  Schedule 1

  	
   

  	
  Purchasers and Shares of Preferred Stock and Warrants Purchased

  
	
   

  	
   

  	
   

  
	
  Schedule 3.1

  	
   

  	
  Subsidiaries

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.10

  	
   

  	
  Litigation

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.11

  	
   

  	
  Absence of Certain Changes

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.15

  	
   

  	
  Intellectual Property

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.17

  	
   

  	
  Preemptive Rights

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.19

  	
   

  	
  Subsidiaries and Investments

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.20

  	
   

  	
  Capitalization

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.21

  	
   

  	
  Options, Warrants, Rights

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.22

  	
   

  	
  Employees, Employment Agreements and
  Employee Benefit Plans

  
	
   

  	
   

  	
   

  
	
  Schedule
  3.27

  	
   

  	
  Brokers

  



 

















 


PREFERRED
STOCK AND WARRANT PURCHASE AGREEMENT (the “Agreement”) dated as of July 14, 2003, by
and among Genetronics Biomedical Corporation, a Delaware corporation (the “Seller”),
SCO Capital Partners LLC, ProMed Partners, L.P., SDS Merchant Fund, LP and each
of the other persons listed on Schedule 1 hereto (each is individually
referred to as a “Purchaser” and collectively, as the “Purchasers”).


 


W I T N E S S
E T H:


 


WHEREAS, each
of the Purchasers is willing to purchase from the Seller, and the Seller
desires to sell to the Purchasers, (i) up to an aggregate of 1,000 shares of
its Series A Cumulative Convertible Preferred Stock, $10,000 liquidation
preference per share, par value $0.001 per share (the “Series A Preferred Stock”),
(ii) up to an aggregate of 1,000 shares of its Series B Cumulative Convertible
Preferred Stock, $10,000 liquidation preference per share, par value $0.001 per
share (the “Series
B Preferred Stock” and together with the Series A Preferred Stock,
the “Preferred
Stock”) and (iii) Common Stock Purchase Warrants (the “Warrants”)
entitling the holders thereof to purchase shares of the Seller’s common stock,
$0.001 par value (the “Common Stock”) as more fully set forth
herein.


 


NOW THEREFORE,
in consideration of the mutual promises and representations, warranties,
covenants and agreements set forth herein, the parties hereto, intending to be
legally bound, hereby agree as follows:


 


ARTICLE I - PURCHASE AND SALE


 


1.1          Purchase
and Sale.


 


(a)           On the terms and subject to the
conditions set forth in this Agreement, at the Closing (as defined in Section
2.2), the Seller will sell and each of the Purchasers will purchase a number of
shares of Preferred Stock and Warrants to purchase a number of shares of Common
Stock as set forth on Schedule 1 hereto.  Schedule 1 reflects an agreement of the parties that each
Purchaser shall purchase shares of Preferred Stock and Warrants pursuant to Tranche
A and/or Tranche B.  Under “Tranche A,”
a Purchaser must purchase shares of Series A Preferred Stock for $10,000 per
share, and a Series A Warrant (as defined in Section 1.2) to purchase a number
of shares of Common Stock calculated by dividing the aggregate purchase price
paid by such Purchaser for such shares of Series A Preferred Stock by the
Conversion Value (as defined in the Series A Certificate of Designation) and
multiplying the result by 0.4.  Under “Tranche B”
a Purchaser must purchase (i) a number of shares of Preferred Stock, for
$10,000 per share, one-third of which shall be Series A Preferred Stock and
two-thirds of which shall be Series B Preferred Stock, (ii) a Series A Warrant
in respect of a number of shares of Common Stock calculated as set forth in the
preceding sentence and (iii) a Series B Warrant to purchase a number of shares
of Common Stock calculated by dividing the aggregate purchase price paid by
such Purchaser for such shares of Series B Preferred Stock by the Conversion Value
(as defined in the Series B Certificate of Designation) and multiplying the
result by 0.4.


 


(b)           The shares of Common Stock issuable
upon conversion of the Preferred Stock or upon payment of dividends on the
Preferred Stock are referred to herein as the “Conversion


 

















 


Shares,” and the shares of Common Stock
issuable upon exercise of the Warrants are referred to herein as the “Warrant
Shares.”


 


1.2          Terms
of the Preferred Stock and Warrants. The terms and
provisions of the Series A Preferred Stock are set forth in the form of
Certificate of Designation of Series A Cumulative Convertible Preferred Stock
attached hereto as Exhibit A-1 (the “Series A Certificate of Designation”) and
the terms and provisions of the Series B Preferred Stock are set forth in the
form of Certificate of Designation of Series B Cumulative Convertible Preferred
Stock attached hereto as Exhibit A-2 (the “Series B Certificate of Designation,
and together with the Series A Certificate of Designation, the “Certificates of
Designation”). The terms and provisions of the Warrants are more
fully set forth in (i) the form of Common Stock Purchase Warrant issued in
connection with the purchase and sale of Series A Preferred Stock, attached
hereto as Exhibit B-1 (the “Series A Warrant”) and (ii) the form of
Common Stock Purchase Warrant issued in connection with the purchase and sale
of Series B Preferred Stock, attached hereto as Exhibit B-2 (the “Series B
Warrant”).  SCO Securities
LLC and/or its designees and other persons or entities are receiving warrants
as compensation for services rendered in connection with the transaction set
forth herein as provided on Schedule 1 attached hereto.  Such warrants shall constitute “Warrants”
for all purposes hereunder and SCO Securities LLC and/or its designees and such
other persons or entities shall constitute “Purchasers” for all purposes
hereunder.


 


1.3          Transfers;
Legends.


 


(a)           (i) Except as required by federal
securities laws and the securities law of any state or other jurisdictions, the
Preferred Stock, Conversion Shares, Warrants and Warrant Shares (collectively,
the “Securities”)
may be transferred, in whole or in part, by any of the Purchasers at any
time.  In the case of Preferred Stock,
such transfer may be effected by delivering written transfer instructions to
the Seller, and the Seller shall reflect such transfer on its books and records
and reissue certificates evidencing the Preferred Stock upon surrender of
certificates evidencing the Preferred Stock being transferred. Any such
transfer shall be made by a Purchaser in accordance with applicable law.  Any transferee shall agree to be bound by
the terms of the Investor Rights Agreement and this Agreement. The Seller shall
reissue certificates evidencing the Securities upon surrender of certificates
evidencing the Securities being transferred in accordance with this Section
1.3(a).


 


(ii)           In connection with any transfer of
Securities other than pursuant to an effective registration statement under the
Securities Act of 1933, as amended (the “Securities Act”), or to the Seller, the
Seller may require the transferor thereof to furnish to the Seller an opinion
of counsel selected by the transferor, such counsel and the form and substance
of which opinion shall be reasonably satisfactory to the Seller and Seller’s
counsel, to the effect that such transfer does not require registration under
the Securities Act; provided, however, that in the case of a
transfer pursuant to Rule 144 under the Securities Act, no opinion shall be
required if the transferor provides the Company with a customary seller’s
representation letter, and if such sale is not pursuant to subsection (k) of
Rule 144, a customary broker’s representation letter and Form 144.   Notwithstanding the foregoing, the Seller
hereby consents to and agrees to register on the books of the Seller and with
any transfer agent for the securities of the Seller, without any such legal
opinion, any transfer of Securities by a Purchaser to an Affiliate of such
Purchaser, provided that the transferee certifies to the Seller that it is an
“accredited investor” as defined in 


 


2

















 


Rule 501(a) under the Securities Act and that
it is acquiring the Securities solely for investment purposes (subject to the
qualifications hereof) and not with a view to, or for, resale, distribution or
fractionalization thereof in whole or in part in violation of the Securities
Act.


 


(iii)          An “Affiliate” means any Person
(as such term is defined below) 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. A “Person”
means any individual or corporation, partnership, trust, incorporated or
unincorporated association, joint venture, limited liability company, joint
stock company, government (or an agency or subdivision of any thereof) or other
entity of any kind.


 


(b)           The certificates representing the
Preferred Stock shall bear the following legends:


 


“THE SHARES REPRESENTED BY, OR ISSUABLE UPON
CONVERSION OR EXERCISE OF SECURITIES EVIDENCED BY, THIS CERTIFICATE HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE
OFFERED OR SOLD IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SAID
ACT UNLESS, IN THE OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY,
SUCH REGISTRATION IS NOT REQUIRED.”


 


“THE SALE, TRANSFER OR ASSIGNMENT OF THE
SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A CERTAIN INVESTOR RIGHTS AGREEMENT DATED AS OF JULY 14, 2003, AS
AMENDED FROM TIME TO TIME, AMONG THE COMPANY AND CERTAIN HOLDERS OF ITS
OUTSTANDING SECURITIES. COPIES OF SUCH AGREEMENT MAY BE OBTAINED AT NO COST BY
WRITTEN REQUEST MADE BY THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE
SECRETARY OF THE COMPANY.”


 


If the
Purchaser is a resident of British Columbia or Ontario the certificates
representing the Preferred Stock shall bear the following additional legend:


 


“UNLESS PERMITTED UNDER
SECURITIES LEGISLATION, THE HOLDER OF THESE SECURITIES SHALL NOT TRADE THE
SECURITIES BEFORE NOVEMBER 15, 2003.”


 


ARTICLE II - PURCHASE PRICE AND CLOSING


 


2.1          Purchase
Price. The aggregate purchase price (the “Purchase
Price”) to be paid by the Purchasers to the Seller to acquire the
Preferred Stock and the applicable Warrants shall be the total of the amounts
payable by each Purchaser, respectively, set forth beside the name of each
Purchaser on Schedule 1 hereto. 
The Purchase Price paid by each Purchaser shall be placed in escrow pending
the Closing as provided in Article 6.1(b) hereof.  The Purchase Price paid by each Purchaser for Series B Preferred
Stock shall be placed in escrow after the Closing as provided in Article 6.1(b)
hereof.


 


3

















 


2.2          The
Closing. 
The closing of the transactions contemplated under this Agreement (the “Closing”)
will take place as promptly as practicable, but no later than two (2) business
days following satisfaction or waiver of the conditions set forth in Article
6.1(a) and (b) and 6.2(a) (other than those conditions which by their terms are
not to be satisfied or waived until the Closing), at the offices of Wiggin
& Dana LLP, 400 Atlantic Street, Stamford, Connecticut 06901.  The date on which the Closing occurs is the
“Closing
Date.”


 


ARTICLE III - REPRESENTATIONS AND WARRANTIES
OF THE SELLER


 


The Seller
represents and warrants to the Purchasers as follows:


 


3.1          Corporate
Existence and Power; Subsidiaries. The Seller and
its Subsidiaries are corporations duly incorporated, validly existing and in
good standing under the laws of the state in which they are incorporated or
continued, and have all corporate powers required to carry on their business as
now conducted. The Seller and its Subsidiaries are duly qualified to do
business as a foreign corporation and are in good standing in each jurisdiction
where the character of the property owned or leased by them or the nature of
their activities makes such qualification necessary, except for those
jurisdictions where the failure to be so qualified would not have a Material
Adverse Effect on the Seller or any of its Subsidiaries. For purposes of this
Agreement, the term “Material Adverse Effect” means, with
respect to any person or entity, a material adverse effect on its and its
Subsidiaries’ condition (financial or otherwise), business, properties, assets,
liabilities (including contingent liabilities), results of operations or
current prospects, taken as a whole. True and complete copies of the Seller’s
Certificate of Incorporation, as amended, and Bylaws, as amended, as currently
in effect and as will be in effect on the Closing Date (collectively, the “Certificate
and Bylaws”), have previously been provided or made available to the
Purchasers. For purposes of this Agreement, the term “Subsidiary” or “Subsidiaries”
means, with respect to any entity, any corporation or other organization of
which securities or other ownership interests having ordinary voting power to
elect a majority of the board of directors or other persons performing similar
functions are directly or indirectly owned by such entity or of which such
entity is a partner or is, directly or indirectly, the beneficial owner of 50%
or more of any class of equity securities or equivalent profit participation
interests.  The Seller has no
Subsidiaries other than as set forth on Schedule 3.1, each of which, unless
otherwise indicated on Schedule 3.1, is wholly-owned by the Seller.


 


3.2          Corporate
Authorization; Enforceability. The execution,
delivery and performance by the Seller of this Agreement, and the Warrants, the
Closing Escrow Agreement (as defined below), the Post-Closing Escrow Agreement
(as defined below), the Certificates of Designation, the Investor Rights
Agreement, and each of the other documents executed pursuant to and in
connection with this Agreement (collectively, the “Related Documents”), and the
consummation of the transactions contemplated hereby and thereby (including,
but not limited to, the sale and delivery of the Preferred Stock and the
Warrants, and the subsequent issuance of the Conversion Shares upon conversion
of the Preferred Stock and the Warrant Shares upon exercise of the Warrants)
have been duly authorized, and no additional corporate or stockholder action is
required pursuant to the rules of the American Stock Exchange or otherwise for
the approval of this Agreement, the Related Documents or the consummation of
the  transactions contemplated hereby or
thereby. The Conversion Shares and the Warrant Shares have been duly reserved
for issuance by the Seller. This Agreement and the Related Documents have been
or, to 


 


4

















 


the extent contemplated hereby or by the
Related Documents, will be duly executed and delivered and constitute the
legal, valid and binding agreement of the Seller, enforceable against the
Seller in accordance with their terms, except as may be limited by bankruptcy,
reorganization, insolvency, moratorium and similar laws of general application
relating to or affecting the enforcement of rights of creditors, and except as
enforceability of its obligations hereunder are subject to general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).


 


3.3          Charter,
Bylaws and Corporate Records. The minute books of
the Seller and its Subsidiaries contain complete and accurate records of all
meetings and other corporate actions of the board of directors, committees of
the board of directors, incorporators and stockholders of the Seller and its
Subsidiaries from the date of incorporation of each such entity to the date
hereof. All material corporate decisions and actions have been validly made or
taken. All corporate books, including without limitation the share transfer
register, comply with applicable laws and regulations and have been regularly
updated.


 


3.4          Regulatory
Authorization. Except as otherwise specifically
contemplated in this Agreement and the Related Documents, and except for: (i)
the filings referenced in Section 5.11; (ii) the filing of a Form D with
respect to the Preferred Stock and Warrants under Regulation D under the
Securities Act; (iii) the filing of the Registration Statement with the
Commission; and (iv) any filings required under state or provincial securities
laws that are permitted to be made after the date hereof, the execution,
delivery and performance by the Seller of this Agreement and the Related
Documents, and the consummation of the transactions contemplated hereby and
thereby (including, but not limited to, the sale and delivery of the Preferred
Stock and Warrants and the subsequent issuance of the Conversion Shares and
Warrant Shares upon conversion of the Preferred Stock or otherwise or exercise
of the Warrants, as applicable) by the Seller require no action by or in
respect of, or filing with, any governmental or regulatory body, agency,
official or authority (including the American Stock Exchange).  The Conversion Shares and the Warrant
Shares, and all shares of Common Stock to be issued as dividends on the
Preferred Stock have been approved for listing on the American Stock Exchange.


 


3.5          Non-Contravention.
The execution, delivery and performance by the Seller of this Agreement and the
Related Documents, and the consummation by the Seller of the transactions
contemplated hereby and thereby (including the issuance of the Conversion
Shares and Warrant Shares) do not and will not (a) contravene or conflict with
the Certificate (as amended by the Certificates of Designation) and Bylaws of the
Seller and its Subsidiaries or any material agreement to which the Seller is a
party or by which it is bound; (b) contravene or conflict with or constitute a
violation of any provision of any law, regulation, judgment, injunction, order
or decree binding upon or applicable to the Seller or its Subsidiaries; (c)
constitute a default (or would constitute a default with notice or lapse of
time or both) under or give rise to a right of termination, cancellation or
acceleration or loss of any benefit under any material agreement, contract or
other instrument binding upon the Seller or its Subsidiaries or under any
material license, franchise, permit or other similar authorization held by the
Seller or its Subsidiaries; or (d) result in the creation or imposition of any
Lien (as defined below) on any asset of the Seller or its Subsidiaries. For
purposes of this Agreement, the term “Lien” means, with respect to any material
asset, any mortgage, lien, pledge, charge, security interest, claim or
encumbrance of any kind in respect of such asset.


 


5

















 


3.6          SEC
Documents. The Seller is obligated under the
Securities Exchange Act of 1934, as amended (the “Exchange Act”) to file
reports pursuant to Sections 13 or 15(d) thereof (all such reports filed or
required to be filed by the Seller, including all exhibits thereto or
incorporated therein by reference, and all documents filed by the Seller under
the Securities Act hereinafter called the “SEC Documents”). The Seller has filed all
reports or other documents required to be filed under the Exchange Act. All SEC
Documents filed by the Seller (i) were prepared in all material respects in
accordance with the requirements of the Exchange Act and (ii) did not at the
time they were filed (or, if amended or superseded by a filing prior to the
date hereof, then on the date of such filing) contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading. The Seller has
previously delivered or made available to the Purchasers a correct and complete
copy of each report which the Seller filed with the Securities and Exchange
Commission (the “SEC” or the “Commission”) under the Exchange Act for
any period ending on or after December 31, 2002 (the “Recent Reports”). None of
the information about the Seller or any of its Subsidiaries which has been
disclosed to the Purchasers herein or in the course of discussions and
negotiations with respect hereto which is not disclosed in the Recent Reports
is or was required to be so disclosed, and no material non-public information
has been disclosed to the Purchasers.


 


3.7          Financial
Statements. Each of the (i) Seller’s audited
consolidated balance sheet and related consolidated statements of income, cash
flows and changes in stockholders’ equity (including the related notes) as of
and for the years ended December 31, 2002 and December 31, 2001, as contained
in the Recent Reports and (ii) the Seller’s unaudited consolidated balance
sheet and related consolidated statements of income, cash flows and changes in
stockholders’ equity as of and for the three months ended March 31, 2003, as contained
in the Recent Reports (both of (i) and (ii), collectively, the “Seller’s
Financial Statements” or the “Financial Statements”) (x) present fairly
in all material respects the financial position of the Seller and its
Subsidiaries on a consolidated basis as of the dates thereof and the results of
operations, cash flows and stockholders’ equity as of and for each of the
periods then ended, except that the unaudited financial statements are subject
to normal year-end adjustments, and (y) were prepared in accordance with United
States generally accepted accounting principals (“GAAP”) applied on a
consistent basis throughout the periods involved, in each case, except as
otherwise indicated in the notes thereto.


 


3.8          Compliance
with Law. The Seller and its Subsidiaries are in
compliance and have conducted their business so as to comply with all laws,
rules and regulations, judgments, decrees or orders of any court,
administrative agency, commission, regulatory authority or other governmental
authority or instrumentality, domestic or foreign, applicable to their
operations, the impact of which would have a Material Adverse Effect. There are
no judgments or orders, injunctions, decrees, stipulations or awards (whether
rendered by a court or administrative agency or by arbitration), against the
Seller or its Subsidiaries or against any of their properties or businesses,
the impact of which would have a Material Adverse Effect.


 


3.9          No
Defaults. The Seller and its Subsidiaries are not,
nor have they received notice that they would be with the passage of time,
giving of notice, or both, (i) in violation of any provision of their
respective Certificates and Bylaws (ii) in default or violation of any material
term, condition or provision of (A) any judgment, decree, order, injunction or
stipulation 


 


6

















 


applicable to the Seller or its Subsidiaries
or (B) any material agreement, note, mortgage, indenture, contract, lease or
instrument, permit, concession, franchise or license to which the Seller or its
Subsidiaries are a party or by which the Seller or its Subsidiaries or their
properties or assets may be bound, and no circumstances exist which would
entitle any party to any material agreement, note, mortgage, indenture, contract,
lease or instrument to which such Seller or its Subsidiaries are a party, to
terminate such, as a result of such Seller or its Subsidiaries having failed to
meet any provision thereof including, but not limited to, meeting any
applicable milestone described therein, which individually, or in the
aggregate, could reasonably be expected to have a Material Adverse Effect.


 


3.10        Litigation.
Except as disclosed in the Recent Reports or on Schedule 3.10, there is
no action, suit, proceeding, judgment, claim or investigation pending or, to
the best knowledge of the Seller, threatened against the Seller or its
Subsidiaries which could, individually or in the aggregate, reasonably be
expected to have a Material Adverse Effect on the Seller or its Subsidiaries or
which in any manner challenges or seeks to prevent, enjoin, alter or materially
delay any of the transactions contemplated hereby, and to the knowledge of the
Seller or its Subsidiaries, there is no basis for the assertion of any of the
foregoing.  There are no claims or
complaints existing or, to the knowledge of the Seller or its Subsidiaries,
threatened for product liability in respect of any product of the Seller or its
Subsidiaries, and the Seller and its Subsidiaries are not aware of any basis for
the assertion of any such claim.


 


3.11        Absence
of Certain Changes. Since December 31, 2002, the
Seller has conducted its business only in the ordinary course, consistent with
past practice, and there has not occurred, except as set forth in the Recent
Reports or any exhibit thereto or incorporated by reference therein:


 


(a)           any event that could reasonably be
expected to have a Material Adverse Effect on the Seller or any of its
Subsidiaries;


 


(b)           any amendments or changes in the
Certificate or Bylaws of the Seller and its Subsidiaries, other than on account
of the filing of the Certificates of Designation;


 


(c)           any damage, destruction or loss,
whether or not covered by insurance, that would, individually or in the
aggregate, have or would be reasonably likely to have, a Material Adverse
Effect on the Seller and its Subsidiaries;


 


(d)           except as set forth on Schedule
3.11(d), any


 


(i)            incurrence, assumption or guarantee
by the Seller or its Subsidiaries of any debt for borrowed money other than for
equipment leases made in the ordinary course of business, consistent with past
practice;


 


(ii)           issuance or sale of any securities
convertible into or exchangeable for securities of the Seller other than to
directors, employees and consultants pursuant to existing equity compensation
or stock option plans of the Seller;


 


(iii)          issuance or sale of options or other
rights to acquire from the Seller or its Subsidiaries, directly or indirectly,
securities of the Seller or any securities convertible 


 


7

















 


into or
exchangeable for any such securities, other than options issued to directors,
employees and consultants in the ordinary course of business, consistent with
past practice;


 


(iv)          issuance or sale of any stock, bond or
other corporate security;


 


(v)           discharge or satisfaction of any
material Lien;


 


(vi)          declaration or making any payment or
distribution to stockholders or purchase or redemption of any share of its
capital stock or other security;


 


(vii)         sale, assignment or transfer of any of
its intangible assets except in the ordinary course of business, consistent
with past practice, or cancellation of any debt or claim except in the ordinary
course of business, consistent with past practice;


 


(viii)        waiver of any right of substantial value
whether or not in the ordinary course of business;


 


(ix)           material change in officer
compensation, except in the ordinary course of business and consistent with
past practice; or


 


(x)            other commitment (contingent or
otherwise) to do any of the foregoing.


 


(e)           any creation, sufferance or
assumption by the Seller or any of its Subsidiaries of any Lien on any asset
(other than in connection with equipment leases and working capital lines of
credit set forth on Schedule 3.11(e)) or any making of any loan, advance
or capital contribution to or investment in any Person, in an aggregate amount
which exceeds $25,000 outstanding at any time;


 


(f)            any entry into, amendment of,
relinquishment, termination or non-renewal by the Seller or its Subsidiaries of
any material contract, license, lease, transaction, commitment or other right
or obligation, other than in the ordinary course of business, consistent with
past practice; or


 


(g)           any transfer or grant of a right with
respect to the patents, trademarks, trade names, service marks, trade secrets,
copyrights or other intellectual property rights owned or licensed by the
Seller or its Subsidiaries, except as among the Seller and its Subsidiaries.


 


3.12        No
Undisclosed Liabilities. Except as set forth in
the Recent Reports, and except for liabilities and obligations incurred since
December 31, 2002 in the ordinary course of business, consistent with past
practice, as of the date hereof, (i) the Seller and its Subsidiaries do not
have any material liabilities or obligations (absolute, accrued, contingent or
otherwise), and (ii) there has not been any aspect of the prior or current
conduct of the business of the Seller or its Subsidiaries which may form the
basis for any material claim by any third party which if asserted could result
in any such material liabilities or obligations.


 


3.13        Taxes.
All tax returns and tax reports required to be filed with respect to the
income, operations, business or assets of the Seller and its Subsidiaries have
been timely filed (or 


 


8

















 


appropriate extensions have been obtained)
with the appropriate governmental agencies in all jurisdictions in which such
returns and reports are required to be filed, and all of the foregoing as filed
are correct and complete in all material respects, reflect accurately all
liability for taxes of the Seller and its Subsidiaries for the periods to which
such returns relate, and all amounts shown as owing thereon have been paid. All
income, profits, franchise, sales, use, value added, occupancy, property,
excise, payroll, withholding, FICA, FUTA and other taxes (including interest
and penalties), if any, collectible or payable by the Seller and its
Subsidiaries or relating to or chargeable against any of its material assets,
revenues or income or relating to any employee, independent contractor,
creditor, stockholder or other third party through the Closing Date, were fully
collected and paid by such date if due by such date or provided for by adequate
reserves in the Financial Statements as of and for the periods ended December
31, 2002 (other than taxes accruing after such date) and all similar items due
through to the Closing Date will have been fully paid by that date or provided
for by adequate reserves, whether or not any such taxes were reported or
reflected in any tax returns or filings. No taxation authority has sought to
audit the records of the Seller or any of its Subsidiaries for the purpose of
verifying or disputing any tax returns, reports or related information and
disclosures provided to such taxation authority, or for the Seller’s or any of
its Subsidiaries’ alleged failure to provide any such tax returns, reports or
related information and disclosure. No material claims or deficiencies have
been asserted against or inquiries raised with the Seller or any of its
Subsidiaries with respect to any taxes or other governmental charges or levies
which have not been paid or otherwise satisfied, including claims that, or
inquiries whether, the Seller or any of its Subsidiaries has not filed a tax
return that it was required to file, and, to the best of the Seller’s
knowledge, there exists no reasonable basis for the making of any such claims
or inquiries. Neither the Seller nor any of its Subsidiaries has waived any
restrictions on assessment or collection of taxes or consented to the extension
of any statute of limitations relating to taxation.


 


3.14        Interests
of Officers, Directors and Other Affiliates. The
description of any interest held, directly or indirectly, by any officer,
director or other Affiliate of Seller (other than the interests of the Seller
and its Subsidiaries in such assets) in any property, real or personal,
tangible or intangible, used in or pertaining to Seller’s business, including
any interest in the Intellectual Property (as defined in Section 3.15 hereof),
as set forth in the Recent Reports, is true and complete, and no officer,
director or other Affiliate of the Seller has any interest in any property,
real or personal, tangible or intangible, used in or pertaining to the Seller’s
business, including the Seller’s Intellectual Property, other than as set forth
in the Recent Reports.


 


3.15        Intellectual
Property. Other than as set forth in the Recent
Reports:


 


(a)           the Seller or a Subsidiary thereof
has the right to use or is the sole and exclusive owner of all right, title and
interest in and to all material foreign and domestic patents, patent rights,
trademarks, service marks, trade names, brands and copyrights (whether or not registered
and, if applicable, including pending applications for registration) owned,
used or controlled by the Seller and its Subsidiaries (collectively, the “Rights”)
and in and to each material invention, software, trade secret, technology,
product, composition, formula and method of process used by the Seller or its
Subsidiaries (the Rights and such other items, the “Intellectual Property”),
and, to the Seller’s knowledge, has the right to use the same, free and clear
of any claim or conflict with the rights of others;


 


9

















 


(b)           no royalties or fees (license or
otherwise) are payable by the Seller or its Subsidiaries to any Person by
reason of the ownership or use of any of the Intellectual Property except as
set forth on Schedule 3.15;


 


(c)           there have been no claims made
against the Seller or its Subsidiaries asserting the invalidity, abuse, misuse,
or unenforceability of any of the Intellectual Property, and, to its knowledge,
there are no reasonable grounds for any such claims;


 


(d)           neither the Seller nor its
Subsidiaries have made any claim of any violation or infringement by others of
its rights in the Intellectual Property, and to the best of the Seller’s
knowledge, no reasonable grounds for such claims exist; and


 


(e)           neither the Seller nor its
Subsidiaries have received notice that it is in conflict with or infringing
upon the asserted rights of others in connection with the Intellectual
Property.


 


3.16        Restrictions
on Business Activities. Other than as set forth in
the Recent Reports, there is no agreement, judgment, injunction, order or
decree binding upon the Seller or its Subsidiaries which has or could
reasonably be expected to have the effect of prohibiting or materially
impairing any business practice of the Seller or its Subsidiaries, any
acquisition of property by the Seller or its Subsidiaries or the conduct of
business by the Seller or its Subsidiaries as currently conducted or as
currently proposed to be conducted by the Seller.


 


3.17        Preemptive
Rights. Except as set forth in Schedule 3.17,
none of the stockholders of the Seller possess any preemptive rights in respect
of the Preferred Stock or Warrants or the Conversion Shares or Warrant Shares
to be issued to the Purchasers upon conversion of the Preferred Stock or
exercise of the Warrants, as applicable.


 


3.18        Insurance.
The insurance policies providing insurance coverage to the Seller or its
Subsidiaries, including the policies in respect of product liability, are
adequate for the business conducted by the Seller and its Subsidiaries and are
sufficient for compliance by the Seller and its Subsidiaries with all
requirements of law and all material agreements to which the Seller or its
Subsidiaries are a party or by which any of their assets are bound. All of such
policies are in full force and effect and are valid and enforceable in
accordance with their terms, and the Seller and its Subsidiaries have complied
with all material terms and conditions of such policies, including premium
payments. None of the insurance carriers has indicated to the Seller or its
Subsidiaries an intention to cancel any such policy.


 


3.19        Subsidiaries
and Investments. Except as set forth in the Recent
Reports or on Schedule 3.19, the Seller has no Subsidiaries or Investments.
For purposes of this Agreement, the term “Investments” shall mean, with respect to
any Person, all advances, loans or extensions of credit to any other Person,
all purchases or commitments to purchase any stock, bonds, notes, debentures or
other securities of any other Person, and any other investment in any other
Person, including partnerships or joint ventures (whether by capital
contribution or otherwise) or other similar arrangement (whether written or
oral) with any Person, including but not limited to arrangements in which (i)
the Person shares profits and losses, (ii) any such other Person has the right
to obligate or bind the Person to any third party, or (iii) the Person may be
wholly or 


 


10

















 


partially liable for the debts or obligations
of such partnership, joint venture or other arrangement.


 


3.20        Capitalization.
The authorized capital stock of the Seller consists of 300,000,000 shares of
common stock, $0.001 par value per share, of which 51,365,895 shares are issued
and outstanding as of the date hereof, and 10,000,000 shares of preferred
stock, issuable in one or more classes or series, with such relative rights and
preferences as the Board of Directors may determine, none of which has been
authorized for issuance other than the Preferred Stock contemplated hereby and
none of which, immediately prior to the Closing, is outstanding.  All shares of the Seller’s issued and
outstanding capital stock have been duly authorized, are validly issued and
outstanding, and are fully paid and non-assessable. No securities issued by the
Seller from the date of its incorporation to the date hereof were issued in
violation of any statutory or common law preemptive rights. There are no
dividends which have accrued or been declared but are unpaid on the capital
stock of the Seller. All taxes required to be paid by Seller in connection with
the issuance and any transfers of the Seller’s capital stock have been paid.
Except as set forth on Schedule 3.20, all permits or authorizations
required to be obtained from, or registrations required to be effected with,
any Person in connection with any and all issuances of securities of the Seller
from the date of the Seller’s incorporation to the date hereof have been obtained
or effected, and all securities of the Seller have been issued and are held in
accordance with the provisions of all applicable securities and other laws.


 


3.21        Options,
Warrants, Rights. Except as set forth on Schedule
3.21, there are no outstanding (a) securities, notes or instruments
convertible into or exercisable for any of the capital stock or other equity
interests of the Seller or its Subsidiaries; (b) options, warrants,
subscriptions or other rights to acquire capital stock or other equity interests
of the Seller or its Subsidiaries; or (c) commitments, agreements or
understandings of any kind, including employee benefit arrangements, relating
to the issuance or repurchase by the Seller or its Subsidiaries of any capital
stock or other equity interests of the Seller or its Subsidiaries, any such
securities or instruments convertible or exercisable for securities or any such
options, warrants or rights. Other than the rights of the Purchasers under the
Preferred Stock and the Warrants, and except as set forth on Schedule 3.21,
neither the Seller nor the Subsidiaries have granted anti-dilution rights to
any person or entity in connection with any outstanding option, warrant,
subscription or any other instrument convertible or exercisable for the securities
of the Seller or any of its Subsidiaries. Other than the rights granted to the
Purchasers under the Investor Rights Agreement, there are no outstanding rights
which permit the holder thereof to cause the Seller or the Subsidiaries to file
a registration statement under the Securities Act or which permit the holder
thereof to include securities of the Seller or any of its Subsidiaries in a
registration statement filed by the Seller or any of its Subsidiaries under the
Securities Act, and there are no outstanding agreements or other commitments
which otherwise relate to the registration of any securities of the Seller or
any of its Subsidiaries for sale or distribution in any jurisdiction, except as
set forth on Schedule 3.21.


 


3.22        Employees,
Employment Agreements and Employee Benefit Plans.
Except as set forth in the Recent Reports or on Schedule 3.22, there are
no employment, consulting, severance or indemnification arrangements,
agreements or understandings between the Seller or its Subsidiaries and any
officer, director, consultant or employee of the Seller or its Subsidiaries
(the “Employment
Agreements”). No Employment Agreement provides for the acceleration
or 


 


11

















 


change in the award, grant, vesting or
determination of options, warrants, rights, severance payments or other
contingent obligations of any nature whatsoever of the Seller or its
Subsidiaries in favor of any such parties in connection with the transactions
contemplated by this Agreement.


 


3.23        Absence
of Certain Business Practices. Neither the Seller,
nor any Affiliate of the Seller, nor to the knowledge of the Seller, any agent
or employee of the Seller, any other Person acting on behalf of or associated
with the Seller, or any individual related to any of the foregoing Persons,
acting alone or together, has: (a) received, directly or indirectly, any
rebates, payments, commissions, promotional allowances or any other economic
benefits, regardless of their nature or type, from any customer, supplier,
trading company, shipping company, governmental employee or other Person with
whom the Seller has done business directly or indirectly; or (b) directly or
indirectly, given or agreed to give any gift or similar benefit to any
customer, supplier, trading company, shipping company, governmental employee or
other Person who is or may be in a position to help or hinder the business of
the Seller (or assist the Seller in connection with any actual or proposed
transaction) which (i) may subject the Seller to any damage or penalty in any
civil, criminal or governmental litigation or proceeding, (ii) if not given in
the past, may have had an adverse effect on the Seller or (iii) if not
continued in the future, may adversely affect the assets, business, operations
or prospects of the Seller or subject the Seller to suit or penalty in any
private or governmental litigation or proceeding.


 


3.24        Products
and Services. To the knowledge of the Seller and
except as disclosed in the Recent Reports, there exists no set of facts (i)
which could furnish a basis for the withdrawal, suspension or cancellation of
any registration, license, permit or other governmental approval or consent of
any governmental or regulatory agency with respect to any product or service developed
or provided by the Seller or its Subsidiaries, (ii) which could furnish a basis
for the withdrawal, suspension or cancellation by order of any state, federal
or foreign court of law of any product or service, or (iii) which could have a
Material Adverse Effect on the continued operation of any facility of the
Seller or its Subsidiaries or which could otherwise cause the Seller or its
Subsidiaries to withdraw, suspend or cancel any such product or service from
the market or to change the marketing classification of any such product or
service. Each product or service provided by Seller or its Subsidiaries has
been provided in accordance in all material respects with the specifications
under which such product or service normally is and has been provided and the
provisions of all applicable laws or regulations.


 


3.25        Environmental
Matters. None of the premises or any properties
owned, occupied or leased by the Seller or its Subsidiaries (the “Premises”)
has been used by the Seller or the Subsidiaries or, to the Seller’s knowledge,
by any other Person, to manufacture, treat, store, or dispose of any substance
that has been designated to be a “hazardous substance” under applicable
Environmental Laws (hereinafter defined) (“Hazardous Substances”) in violation of any
applicable Environmental Laws, violation of which would have a Material Adverse
Effect. To its knowledge, the Seller has not disposed of, discharged, emitted
or released any Hazardous Substances which would require, under applicable
Environmental Laws, remediation, investigation or similar response activity. No
Hazardous Substances are present as a result of the actions of the Seller or,
to the Seller’s knowledge, any other Person, in, on or under the Premises which
would give rise to any liability or clean-up obligations of the Seller under
applicable Environmental Laws, the impact of which would have a Material
Adverse Effect. The Seller and, 


 


12

















 


to the Seller’s knowledge, any other Person
for whose conduct it may be responsible pursuant to an agreement or by
operation of law, are in compliance with all laws, regulations and other
federal, state or local governmental requirements, and all applicable
judgments, orders, writs, notices, decrees, permits, licenses, approvals,
consents or injunctions in effect on the date of this Agreement relating to the
generation, management, handling, transportation, treatment, disposal, storage,
delivery, discharge, release or emission of any Hazardous Substance (the “Environmental
Laws”). Neither the Seller nor, to the Seller’s knowledge, any other
Person for whose conduct it may be responsible pursuant to an agreement or by
operation of law has received any written complaint, notice, order, or citation
of any actual, threatened or alleged noncompliance with any of the
Environmental Laws, and there is no proceeding, suit or investigation pending
or, to the Seller’s knowledge, threatened against the Seller or, to the
Seller’s knowledge, any such Person with respect to any violation or alleged
violation of the Environmental Laws, and, to the knowledge of the Seller, there
is no basis for the institution of any such proceeding, suit or investigation,
the violation of which would have a Material Adverse Effect.


 


3.26        Licenses;
Compliance With FDA and Other Regulatory Requirements.


 


(a)           General. Except as disclosed
in the Recent Reports, the Seller holds all material authorizations, consents,
approvals, franchises, licenses and permits required under applicable law or regulation
for the operation of the business of the Seller and its Subsidiaries as
presently operated (the “Governmental Authorizations”). All the
Governmental Authorizations have been duly issued or obtained and are in full
force and effect, and the Seller and its Subsidiaries are in material
compliance with the terms of all the Governmental Authorizations. The Seller
and its Subsidiaries have not engaged in any activity that, to their knowledge,
would cause revocation or suspension of any such Governmental Authorizations.
The Seller has no knowledge of any facts which could reasonably be expected to
cause the Seller to believe that the Governmental Authorizations will not be
renewed by the appropriate governmental authorities in the ordinary course.
Neither the execution, delivery nor performance of this Agreement shall
adversely affect the status of any of the Governmental Authorizations.


 


(b)           Regulatory Authorities.
Without limiting the generality of the representations and warranties made in
paragraph (a) above, the Seller represents and warrants that (i) the Seller and
each of its Subsidiaries is in material compliance with all applicable
provisions of the United States Federal Food, Drug, and Cosmetic Act and the
rules and regulations promulgated thereunder (the “FDC Act”) and equivalent
laws, rules and regulations in jurisdictions outside the United States in which
the Seller or its Subsidiaries do business, (ii) its products and those of each
of its Subsidiaries that are in the Seller’s control are not adulterated or
misbranded and are in lawful distribution, (iii) all of the products marketed
by and within the control of the Seller comply in all material respects with
any conditions of approval and the terms of the application by the Seller to
the appropriate Regulatory Authorities, (iv) to the knowledge of the Seller or
its Subsidiaries, no Regulatory Authority has initiated legal action with
respect to the manufacturing of the Seller’s products, such as seizures or
required recalls, and Seller uses best efforts to comply with applicable good
manufacturing practice regulations, (v) its products are labeled and promoted
by the Seller and its representatives in substantial compliance with the
applicable terms of the marketing applications submitted by the Seller to the
Regulatory Authorities and the provisions of the FDC Act and foreign
equivalents, (vi) all adverse events that were known to 


 


13

















 


and required to be reported by Seller to the
Regulatory Authorities have been reported to the Regulatory Authorities in a
timely manner, (vii) neither the Seller nor any of its Subsidiaries is, to
their knowledge, employing or utilizing the services of any individual who has
been debarred under the FDC Act or foreign equivalents, (viii) all stability
studies required to be performed for products distributed by the Seller or any
of its Subsidiaries have been completed or are ongoing in material compliance
with the applicable Regulatory Authority requirements, (ix) any products
exported by the Seller or any of its Subsidiaries have been exported in
compliance with the FDC Act and (x) the Seller and its Subsidiaries is in
compliance in all material respects with all applicable provisions of the
Controlled Substances Act.  For purposes
of this Article 3.26, “Regulatory Authority” means any
governmental authority in a country or region that regulates the manufacture or
sale of Seller’s products, including, but not limited to, the United States
Food and Drug Administration.


 


3.27        Brokers.
Except as set forth on Schedule 3.27, no broker, finder or investment
banker is entitled to any brokerage, finder’s or other fee or commission in
connection with the transactions contemplated by this Agreement, based upon any
arrangement made by or on behalf of the Seller, which would make any Purchaser
liable for any fees or commissions.


 


3.28        Securities
Laws. Neither the Seller nor its Subsidiaries, nor
any agent acting on behalf of the Seller or its Subsidiaries, has taken or will
take any action which might cause this Agreement or the Preferred Stock or
Warrants to violate the Securities Act or the Exchange Act or any rules or
regulations promulgated thereunder, as in effect on the Closing Date. Assuming
that all of the representations and warranties of the Purchasers set forth in
Article IV are true, all offers and sales of the Preferred Stock and Warrants
were conducted and completed in compliance with the Securities Act. All shares
of capital stock and other securities issued by the Seller and its Subsidiaries
prior to the date hereof have been issued in transactions that were either
registered offerings or were exempt from the registration requirements under
the Securities Act and all applicable state securities or “blue sky” laws and
in compliance with all applicable corporate laws.


 


3.29        Disclosure.
No representation or warranty made by the Seller in this Agreement or the
Related Documents or in any Schedule or Exhibit hereto or thereto, contains or
will contain any untrue statement of a material fact, or omits to state a
material fact necessary to make the statements or facts contained herein or
therein not misleading in light of the circumstances under which they were
furnished.


 


3.30        Poison Pill.
The Seller 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 Seller’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 Seller fulfilling their obligations or exercising
their rights under this Agreement and the Related Documents, including without
limitation the Company’s issuance of the Securities and the Purchasers’
ownership of the Securities.


 


14

















 


ARTICLE IV - REPRESENTATIONS AND WARRANTIES
OF THE PURCHASERS


 


Each
Purchaser, for itself only, hereby severally and not jointly, represents and
warrants to the Seller as follows:


 


4.1          Existence
and Power. The Purchaser, if not a natural person,
is duly organized, validly existing and in good standing under the laws of the
jurisdiction of such Purchaser’s organization. Such Purchaser has all powers
required to bind it to the representations, warranties and covenants set forth
herein.


 


4.2          Authorization.
The execution, delivery and performance by the Purchaser of this Agreement, the
Related Documents to which such Purchaser is a party, and the consummation by
the Purchaser of the transactions contemplated hereby and thereby have been
duly authorized, and no additional action is required for the approval of this
Agreement or the Related Documents. This Agreement and the Related Documents to
which the Purchaser is a party have been or, to the extent contemplated hereby,
will be duly executed and delivered and constitute valid and binding agreements
of the Purchaser, enforceable against such Purchaser in accordance with their
terms, except as may be limited by bankruptcy, reorganization, insolvency,
moratorium and similar laws of general application relating to or affecting the
enforcement of rights of creditors and except that enforceability of their
obligations thereunder are subject to general principles of equity (regardless
of whether such enforceability is considered in a proceeding in equity or at
law).


 


4.3          Investment.
The Purchaser is acquiring the securities described herein for the Purchaser’s
own account and not with a view to, or for sale in connection with, any
distribution thereof, nor with the intention of distributing or reselling the
same; provided,
however, that by making the representation in this Section 4.3, the
Purchaser does not agree to hold any of the securities for any minimum or other
specific term, and reserves the right to dispose of the securities at any time
in accordance with or pursuant to a registration statement or an exemption
under the Securities Act. The Purchaser is aware that none of the securities
has been registered under the Securities Act or under applicable state
securities or blue sky laws. The Purchaser is an “Accredited Investor” as such
term is defined in Rule 501 of Regulation D, as promulgated under the
Securities Act.


 


4.4          Reliance
on Exemptions. The Purchaser understands that the
Preferred Stock and Warrants are being offered and sold to such Purchaser in
reliance upon specific exemptions from the registration requirements of United
States federal and state securities laws and that the Seller is relying upon
the truth and accuracy of, and such Purchaser’s compliance with, the
representations, warranties, agreements, acknowledgments and understandings of
such Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire the securities.


 


4.5          Experience
of the Purchaser. The 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. The 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.


 


15

















 


4.6          General
Solicitation. The 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.


 


4.7          Independence.
The Purchaser is neither an Affiliate of any other Purchaser nor is a member of
any “group” in which any other Purchaser is a member, except that: SCO
Securities LLC, SCO Capital Partners LLC, The Chloe H. Rouhnadeh Trust, The
Sophie C. Rouhnadeh Trust  and
The Steven H. Rouhnadeh 1999 Family Trust are Affiliates, SDS Merchant Fund, LP
and BayStar Capital L.P. are Affiliates, ProMed Partners, L.P and ProMed
Offshore Fund, Ltd. are Affiliates, and Xmark Fund, Ltd. and Xmark Fund, L.P.
are Affiliates.  For purposes hereof, “group”
has the meaning set forth in Section 13(d) of the Exchange Act and applicable
regulations of the Securities and Exchange Commission.


 


ARTICLE V - COVENANTS OF THE SELLER AND
PURCHASERS


 


5.1          Insurance.
The Seller and its Subsidiaries shall maintain insurance policies such that the
representations contained in the first sentence of Section 3.18 hereof continue
to be true and correct and shall, from time to time upon the written request of
the Purchasers, promptly furnish or cause to be furnished to the Purchasers
evidence, in form and substance reasonably satisfactory to the Purchasers, of
the maintenance of all insurance maintained by it.


 


5.2          Reporting
Obligations. So long as any of the Preferred Stock
is outstanding, and so long as any Warrant has not been exercised and has not
expired by its terms, the Seller shall furnish to the Purchasers, or any other
persons who hold any of the Preferred Stock or Warrants (provided that such
subsequent holders give notice to the Seller that they hold Preferred Stock or
Warrants and furnish their addresses) promptly upon their becoming available
one copy of (A) each report, notice or proxy statement sent by the Seller to
its stockholders generally, and of each regular or periodic report (pursuant to
the Exchange Act) and (B) any registration statement, prospectus or written
communication pursuant to the Securities Act relating to the issuance or
registration of Conversion Shares and the Warrant Shares and filed by the
Seller with the Commission or any securities market or exchange on which shares
of Common Stock are listed; provided, however, that the Company shall
have no obligation to deliver periodic reports (pursuant to the Exchange Act)
under this Section 5.2 to the extent such reports are publicly available.


 


The Purchasers
are hereby authorized to deliver a copy of any financial statement or any other
information relating to the business, operations or financial condition of the
Seller which may have been furnished to the Purchasers hereunder, to any
regulatory body or agency having jurisdiction over the Purchasers or to any
Person which shall, or shall have the right or obligation to succeed to all or
any part of the Purchasers’ interest in the Seller or this Agreement.


 


5.3          Investigation.
The representations, warranties, covenants and agreements set forth in this
Agreement shall not be affected or diminished in any way by any investigation
(or failure to investigate) at any time by or on behalf of any party for whose
benefit such representations, warranties, covenants and agreements were made.
Without limiting the generality of the foregoing, the inability or failure of
the Purchasers to discover any breach, 


 


16

















 


default or misrepresentation by the Seller
under this Agreement or the Related Documents (including under any certificate
furnished pursuant to this Agreement), notwithstanding the exercise by the
Purchasers or other holders of the Preferred Stock of their rights hereunder to
conduct an investigation, shall not in any way diminish any liability
hereunder.


 


5.4          Further
Assurances. The Seller shall, at its cost and
expense, upon written request of Purchasers holding a majority of the Preferred
Stock, duly execute and deliver, or cause to be duly executed and delivered, to
the Purchasers such further instruments and do and cause to be done such
further acts as may be necessary, advisable or proper, in the absolute
discretion of the Purchasers, to carry out more effectually the provisions and
purposes of this Agreement. The parties shall use their best efforts to timely
satisfy each of the conditions described in Article VI of this Agreement.


 


5.5          Use
of Proceeds. The Seller covenants and agrees that
the proceeds of the Purchase Price shall be used by the Seller for working
capital and general corporate purposes; under no circumstances shall any
portion of the proceeds be applied to:


 


(i)            accelerated repayment of debt
existing on the date hereof;


 


(ii)           the payment of dividends or other
distributions on any capital  stock of
the Seller, other than the Preferred Stock;


 


(iii)          increased executive compensation or
loans to officers, employees, stockholders or directors, unless approved by a
majority of the disinterested members of the Board of Directors;


 


(iv)          the purchase of debt or equity
securities of any Person, including the Seller and its Subsidiaries, except in
connection  with investment of excess
cash in high quality (A1/P1 or better) money market instruments having
maturities of one year or less; or


 


(v)           any investment not directly related
to the business of the Seller.


 


5.6          Corporate
Existence. So long as a Purchaser owns Preferred
Stock, Warrants, Conversion Shares or Warrant Shares, the Seller shall preserve
and maintain and cause its Subsidiaries to preserve and maintain their
corporate existence and good standing in the jurisdiction of their
incorporation and the rights, privileges and franchises of the Seller and its
Subsidiaries (except, in each case, in the event of a merger or consolidation
in which the Seller or its Subsidiaries, as applicable, is not the surviving
entity) in each case where the failure to so preserve or maintain could have a
Material Adverse Effect on the financial condition, business or operations of
the Seller and its Subsidiaries taken as a whole.


 


5.7          Licenses.
The Seller shall, and shall cause its Subsidiaries to, maintain at all times
all material licenses or permits necessary to the conduct of its business and
as required by any governmental agency or instrumentality thereof, including
without limitation all FDA clearances and approvals.


 


17

















 


5.8          Like
Treatment of Purchasers and Holders.  Neither the Seller nor any of its affiliates
shall, directly or indirectly, pay or cause to be paid any consideration
(immediate or contingent), whether by way of interest, fee, payment for
redemption, conversion or exercise of the Securities, or otherwise, to any Purchaser
or holder of Securities, for or as an inducement to, or in connection with the
solicitation of, any consent, waiver or amendment to any terms or provisions of
this Agreement or the Related Documents, unless such consideration is required
to be paid to all Purchasers or holders of Securities bound by such consent,
waiver or amendment.  The Seller shall
not, directly or indirectly, redeem any Securities unless such offer of
redemption is made pro rata to all Purchasers or holders of Securities, as the
case may be, on identical terms.


 


5.9          Taxes
and Claims. The Seller and its Subsidiaries shall
duly pay and discharge (a) all taxes, assessments and governmental charges upon
or against the Seller or its properties or assets prior to the date on which
penalties attach thereto, unless and to the extent that such taxes are being
diligently contested in good faith and by appropriate proceedings, and
appropriate reserves therefor have been established, and (b) all lawful claims,
whether for labor, materials, supplies, services or anything else which might
or could, if unpaid, become a lien or charge upon the properties or assets of
the Seller or its Subsidiaries, unless and to the extent only that the same are
being diligently contested in good faith and by appropriate proceedings and
appropriate reserves therefor have been established.


 


5.10        Perform
Covenants. The Seller shall (a) make full and
timely payment of any and all payments on the Preferred Stock, and all other
obligations of the Seller to the Purchasers in connection therewith, whether
now existing or hereafter arising, and (b) duly comply with all the terms and
covenants contained herein and in each of the instruments and documents
delivered to the Purchasers in connection with or pursuant to this Agreement,
all at the times and places and in the manner set forth herein or therein.


 


5.11        Additional
Covenants.


 


(a)           Except for transactions approved by a
majority of the disinterested members of the Board of Directors, neither the
Seller nor any of its Subsidiaries shall enter into any transaction with any
(i) director, officer, employee or holder of more than 5% of the outstanding
capital stock of any class or series of capital stock of the Seller or any of
its Subsidiaries, (ii) member of the family of any such person, or (iii)
corporation, partnership, trust or other entity in which any such person, or
member of the family of any such person, is a director, officer, trustee,
partner or holder of more than 5% of the outstanding capital stock thereof.


 


(b)           The Seller shall timely prepare and
file with the Securities and Exchange Commission the form of notice of the sale
of securities pursuant to the requirements of Regulation D regarding the sale
of the Preferred Stock and Warrants under this Agreement.


 


(c)           The Seller shall timely prepare and
file such applications, consents to service of process (but not including a
general consent to service of process) and similar documents and take such
other steps and perform such further acts as shall be required by the state
securities law requirements of each jurisdiction where a Purchaser resides, as
indicated on Schedule 1, with respect to the sale of the Preferred Stock
and Warrants under this Agreement.


 


18

















 


(d)           The Seller shall obtain as promptly
as practicable the approval of the application to the American Stock Exchange
for the listing or qualification of the Conversion Shares and the Warrant
Shares for trading thereon.


 


5.12        Securities
Laws Disclosure; Publicity. The Seller may (i) on
or promptly after the Closing Date, issue a press release acceptable to SCO
Securities LLC disclosing the transactions contemplated hereby, and (ii) after
the Closing Date, file with the Commission a Report on Form 8-K disclosing the transactions
contemplated hereby. Except as provided in the preceding sentence, neither the
Company nor the Purchasers shall make any press release or other public
announcement of the terms of this Agreement or the transactions contemplated
hereby without the prior approval of the other, unless otherwise required by
applicable law or the rules of the Commission or the American Stock Exchange.


 


ARTICLE VI - CONDITIONS TO CLOSING


 


6.1          Conditions
to Obligations of Purchasers to Effect the Closing.
The obligations of a Purchaser to effect the Closing and the transactions
contemplated by this Agreement shall be subject to the satisfaction at or prior
to the Closing, of each of the following conditions, any of which may be
waived, in writing, by a Purchaser:


 


(a)           The Seller shall deliver or cause to
be delivered to each of the Purchasers the following:


 


1.             (i)            One
or more certificates evidencing the aggregate number of shares of the Preferred
Stock, duly authorized, issued, fully paid and non-assessable, as is indicated
on Schedule 1 to be purchased at the Closing by such Purchaser,
registered in the name of such Purchaser, in such denominations as is indicated
on Schedule 1 for such Purchaser;


 


(ii)           One or more Warrants, registered in
the name of such Purchaser, in such denominations as is indicated on Schedule
1 for such Purchaser, pursuant to which such Purchaser shall be initially
entitled to purchase that number of shares of Common Stock as is indicated on Schedule
1.


 


(iii)          One or more Warrants to be issued to
the placement agents or their designees, registered in the name of such
placement agent or their designees, in such denominations as is indicated on Schedule
1 to the Purchase Agreement, pursuant to which they shall be initially
entitled to purchase that number of shares of Common Stock as is indicated on Schedule
1 to the Purchase Agreement;


 


2.             The Investor Rights Agreement, in
the form attached hereto as Exhibit C (the “Investor Rights Agreement”),
duly executed by the Seller.


 


3.             A legal opinion from each of
Kirkpatrick & Lockhart LLP and Catalyst Corporate Finance Lawyers, counsels
to the Seller, collectively in the form attached hereto as Exhibit D.


 


19

















 


4.             A certificate of the Secretary of
the Seller (the “Secretary’s Certificate”), in form and substance
satisfactory to the Purchasers, certifying as follows:


 


(i)            that the Certificates of Designation
authorizing the Preferred Stock have been duly filed in the office of the
Secretary of State of the State of Delaware, and that attached to the
Secretary’s Certificate are true and complete copy of the Certificate of
Incorporation of the Seller, as amended, and the Certificates of Designation;


(ii)           that a true copy of the Bylaws of the
Seller, as amended to the Closing Date, is attached to the Secretary’s
Certificate;


(iii)          that attached thereto are true and
complete copies of the resolutions of the Board of Directors of the Seller
authorizing the execution, delivery and performance of this Agreement and the
Related Documents, instruments and certificates required to be executed by it
in connection herewith and approving the consummation of the transactions in
the manner contemplated hereby including, but not limited to, the authorization
and issuance of the Preferred Stock and Warrants;


(iv)          the names and true signatures of the
officers of the Seller signing this Agreement and all other documents to be
delivered in connection with this Agreement;


(v)           such other matters as required by
this Agreement; and


(vi)          such other matters as the Purchasers
may reasonably request.


 


5.             A wire transfer representing the
Purchasers’ legal fees and other third-party expenses as described in Section
8.2 hereof; such fee may, at the election of the Purchasers, be paid out of the
funds due from the Purchasers at the Closing.


 


6.             Proof of due filing with the
Secretary of State of the State of Delaware of the Certificates of Designation
authorizing the Preferred Stock.


 


7.             Proof of the preliminary approval
of the application to the American Stock Exchange for the listing or
qualification of the Conversion Shares and the Warrant Shares for trading
thereon.


 


8.             Such other documents as the
Purchasers shall reasonably request.


 


(b)           The Seller shall have entered into a
Closing Escrow Agreement with Wiggin & Dana LLP (the “Escrow Agent”) in the form
attached hereto as Exhibit E (the “Closing Escrow Agreement”) pursuant to
which the Escrow Agent shall hold certain funds and documents described
therein.  The Seller shall have also
entered into a Post-Closing Escrow Agreement with the Escrow Agent in the form
attached hereto as Exhibit F (the “Post-Closing Escrow Agreement”) pursuant
to which the Escrow Agent shall hold certain funds described therein to secure
the Seller’s potential redemption payment obligations pursuant to Section 14 of
the Series B Certificate of Designation.


 


6.2          Conditions
to Obligations of the Seller to Effect the Closing.
The obligations of the Seller to effect the Closing and the transactions
contemplated by this Agreement shall be 


 


20

















 


subject to the satisfaction at or prior to
the Closing of each of the following conditions, any of which may be waived, in
writing, by the Seller:


 


(a)           Each of the Purchasers shall deliver
or cause to be delivered to the Seller (i) payment of the portion of the
Purchase Price set forth opposite each Purchaser’s name on Schedule 1,
in cash by either (x) wire transfer of immediately available funds to an
account designated in writing by Seller prior to the date hereof, or (y)
certified or cashier’s check; (ii) an executed copy of this Agreement; (iii) an
executed copy of the Investor Rights Agreement; and (iv) such other documents
as the Seller shall reasonably request.


 


ARTICLE VII — INDEMNIFICATION, TERMINATION
AND DAMAGES


 


7.1          Survival
of Representations. Except as otherwise provided
herein, the representations and warranties of the Seller and the Purchasers
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing Date and shall continue in full
force and effect for a period of three (3) years from the Closing Date;
provided, however, that the Seller’s warranties and representations under
Sections 3.13 (Taxes), 3.19 (Subsidiaries and Investments), 3.20
(Capitalization), and 3.21 (Options, Warrants, Rights), shall survive the
Closing Date and continue in full force and effect until the expiration of all
applicable statutes of limitation; and further provided that the Seller’s
warranties and representations under Section 3.25 (Environmental Matters) shall
survive the Closing Date and continue in full force and effect for a period of
six (6) years from the Closing Date. The Seller’s and the Purchasers’
warranties and representations shall in no way be affected or diminished in any
way by any investigation of (or failure to investigate) the subject matter
thereof made by or on behalf of the Seller or the Purchasers.


 


7.2          Indemnification.


 


(a)           The Seller agrees to indemnify and
hold harmless the Purchasers, their Affiliates, each of their officers,
directors, partners, employees and agents and their respective successors and
assigns, from and against any losses, damages, or expenses which are caused by
or arise out of (i) any breach or default in the performance by the Seller of
any covenant or agreement made by the Seller in this Agreement or in any of the
Related Documents; (ii) any breach of warranty or representation made by the
Seller in this Agreement or in any of the Related Documents (iii) any and all
third party actions, suits, proceedings, claims, demands, judgments, costs and
expenses (including reasonable legal fees and expenses) incident to any of the
foregoing.


 


(b)           The Purchasers, severally and not
jointly, agree to indemnify and hold harmless the Seller, its Affiliates, each
of their officers, directors, employees and agents and their respective
successors and assigns, from and against any losses, damages, or expenses which
are caused by or arise out of (A) any breach or default in the performance by
the Purchasers of any covenant or agreement made by the Purchasers in this
Agreement or in any of the Related Documents; (B) any breach of warranty or
representation made by the Purchasers in this Agreement or in any of the
Related Documents; and (C) any and all third party actions, suits, proceedings,
claims, demands, judgments, costs and expenses (including reasonable legal fees
and expenses) incident to any of the foregoing; provided, however, that a
Purchaser’s liability


 


21

















 


under this Section 7.2(b) shall not exceed
the Purchase Price paid by such Purchaser hereunder less any amounts paid to
such Purchaser pursuant to any redemption of the Preferred Stock.


 


7.3          Indemnity
Procedure. A party or parties hereto agreeing to
be responsible for or to indemnify against any matter pursuant to this
Agreement is referred to herein as the “Indemnifying Party” and the other party or
parties claiming indemnity is referred to as the “Indemnified Party”.  An Indemnified Party under this Agreement
shall, with respect to claims asserted against such party by any third party,
give written notice to the Indemnifying Party of any liability which might give
rise to a claim for indemnity under this Agreement within sixty (60) business
days of the receipt of any written claim from any such third party, but not
later than twenty (20) days prior to the date any answer or responsive pleading
is due, and with respect to other matters for which the Indemnified Party may
seek indemnification, give prompt written notice to the Indemnifying Party of
any liability which might give rise to a claim for indemnity; provided,
however, that any failure to give such notice will not waive any
rights of the Indemnified Party except to the extent the rights of the
Indemnifying Party are materially prejudiced.


 


The
Indemnifying Party shall have the right, at its election, to take over the
defense or settlement of such claim by giving written notice to the Indemnified
Party at least fifteen (15) days prior to the time when an answer or other
responsive pleading or notice with respect thereto is required. If the
Indemnifying Party makes such election, it may conduct the defense of such
claim through counsel of its choosing (subject to the Indemnified Party’s
approval of such counsel, which approval shall not be unreasonably withheld),
shall be solely responsible for the expenses of such defense and shall be bound
by the results of its defense or settlement of the claim. The Indemnifying
Party shall not settle any such claim without prior notice to and consultation
with the Indemnified Party, and no such settlement involving any equitable
relief or which might have an adverse effect on the Indemnified Party may be
agreed to without the written consent of the Indemnified Party (which consent
shall not be unreasonably withheld). So long as the Indemnifying Party is
diligently contesting any such claim in good faith, the Indemnified Party may
pay or settle such claim only at its own expense and the Indemnifying Party
will not be responsible for the fees of separate legal counsel to the
Indemnified Party, unless the named parties to any proceeding include both
parties or representation of both parties by the same counsel would be
inappropriate in the reasonable opinion of the Indemnified Party, due to
conflicts of interest or otherwise. If the Indemnifying Party does not make
such election, or having made such election does not, in the reasonable opinion
of the Indemnified Party proceed diligently to defend such claim, then the
Indemnified Party may (after written notice to the Indemnifying Party), at the
expense of the Indemnifying Party, elect to take over the defense of and
proceed to handle such claim in its discretion and the Indemnifying Party shall
be bound by any defense or settlement that the Indemnified Party may make in
good faith with respect to such claim. In connection therewith, the
Indemnifying Party will fully cooperate with the Indemnified Party should the
Indemnified Party elect to take over the defense of any such claim. The parties
agree to cooperate in defending such third party claims and the Indemnified
Party shall provide such cooperation and such access to its books, records and
properties as the Indemnifying Party shall reasonably request with respect to
any matter for which indemnification is sought hereunder; and the parties
hereto agree to cooperate with each other in order to ensure the proper and
adequate defense thereof.


 


22

















 


With regard to
claims of third parties for which indemnification is payable hereunder, such
indemnification shall be paid by the Indemnifying Party upon the earlier to
occur of: (i) the entry of a judgment against the Indemnified Party and the expiration
of any applicable appeal period, or if earlier, five (5) days prior to the date
that the judgment creditor has the right to execute the judgment; (ii) the
entry of an unappealable judgment or final appellate decision against the
Indemnified Party; or (iii) a settlement of the claim. Notwithstanding the
foregoing, the reasonable expenses of counsel to the Indemnified Party shall be
reimbursed on a current basis by the Indemnifying Party. With regard to other
claims for which indemnification is payable hereunder, such indemnification
shall be paid promptly by the Indemnifying Party upon demand by the Indemnified
Party.


 


ARTICLE VIII - MISCELLANEOUS


 


8.1          Further
Assurances. Each party agrees to cooperate fully
with the other parties and to execute such further instruments, documents and
agreements and to give such further written assurances as may be reasonably
requested by any other party to better evidence and reflect the transactions
described herein and contemplated hereby and to carry into effect the intents
and purposes of this Agreement, and further agrees to take promptly, or cause
to be taken, all actions, and to do promptly, or cause to be done, all things
necessary, proper or advisable under applicable law to consummate and make
effective the transactions contemplated hereby, to obtain all necessary
waivers, consents and approvals, to effect all necessary registrations and
filings, and to remove any injunctions or other impediments or delays, legal or
otherwise, in order to consummate and make effective the transactions
contemplated by this Agreement for the purpose of securing to the parties
hereto the benefits contemplated by this Agreement.


 


8.2          Fees
and Expenses. The Seller shall be responsible for
the payment of the Purchasers’ legal fees and other third-party expenses
relating to the preparation, negotiation and execution of this Agreement and
the Related Documents and the consummation of the transactions contemplated
herein and therein.


 


8.3          Notices.
Any and all notices or other communications or deliveries required or permitted
to be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Section prior to 5:00 p.m. (New York City time) on a business day, (b) the
next business day after the date of transmission, if such notice or
communication is delivered via facsimile at the facsimile number specified in
this Section on a day that is not a business day or later than 5:00 p.m. (New
York City time) on any business day, or (c) the business day following the date
of mailing, if sent by U.S. nationally recognized overnight courier service
such as Federal Express. The address for such notices and communications shall
be as follows:


 


If to the
Purchasers at each Purchaser’s address set forth under its name on Schedule
1 attached hereto, or with respect to the Seller, addressed to:


 


Genetronics
Biomedical Corporation


11199 Sorrento
Valley Road


San Diego, CA
92121-1334


 


23

















 


Attention:  Mr. Peter Kies, Chief Financial Officer


Facsimile
No.:  858-597-0451


 


or to such other address or addresses or
facsimile number or numbers as any such party may most recently have designated
in writing to the other parties hereto by such notice. Copies of notices to the
Seller shall be sent to Kirkpatrick & Lockhart, LLP, 10100 Santa Monica
Boulevard, 7th Floor, Los Angeles, CA, 90067, Attention: Mr. Thomas Poletti,
Esq, Facsimile: 310- 552-5001. Copies of notices to any Purchaser shall be sent
to the addresses, if any, listed on Schedule 1 attached hereto.


 


Unless
otherwise stated above, such communications shall be effective when they are
received by the addressee thereof in conformity with this Section. Any party
may change its address for such communications by giving notice thereof to the
other parties in conformity with this Section.


 


8.4          Governing
Law. All questions concerning the construction,
validity, enforcement and interpretation of this Agreement shall be governed by
and enforced in accordance with the laws of the State of New York without
reference to the conflicts of laws principles thereof.


 


8.5          Jurisdiction
and Venue. This Agreement shall be subject to the
exclusive jurisdiction of the Federal District Court, Southern District of New
York and if such court does not have proper jurisdiction, the State Courts of
New York County, New York. The parties to this Agreement agree that any breach of
any term or condition of this Agreement shall be deemed to be a breach
occurring in the State of New York by virtue of a failure to perform an act
required to be performed in the State of New York and irrevocably and expressly
agree to submit to the jurisdiction of the Federal District Court, Southern
District of New York and if such court does not have proper jurisdiction, the
State Courts of New York County, New York for the purpose of resolving any
disputes among the parties relating to this Agreement or the transactions
contemplated hereby. The parties irrevocably waive, to the fullest extent
permitted by law, any objection which they may now or hereafter have to the
laying of venue of any suit, action or proceeding arising out of or relating to
this Agreement, or any judgment entered by any court in respect hereof brought
in New York County, New York, and further irrevocably waive any claim that any
suit, action or proceeding brought in Federal District Court, Southern District
of New York and if such court does not have proper jurisdiction, the State
Courts of New York County, New York has been brought in an inconvenient forum.
Each of the parties hereto consents to process being served in any such suit,
action or proceeding, by mailing a copy thereof 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 in this Section 8.5
shall affect or limit any right to serve process in any other manner permitted
by law.


 


8.6          Successors
and Assigns. This Agreement is personal to each of
the parties and may not be assigned without the written consent of the other
parties; provided,
however,
that any of the Purchasers shall be permitted to assign this Agreement to any
Person to whom it assigns or transfers securities issued or issuable pursuant
to this Agreement in compliance with applicable securities laws.  Any assignee must be an “accredited
investor” as defined in Rule 501(a) promulgated under the Securities Act.


 


24

















 


8.7          Severability.
If any provision of this Agreement, or the application thereof, shall for any
reason or to any extent be invalid or unenforceable, the remainder of this
Agreement and application of such provision to other persons or circumstances
shall continue in full force and effect and in no way be affected, impaired or
invalidated.


 


8.8          Entire
Agreement. This Agreement, the Related Documents
and the other agreements and instruments referenced herein constitute the
entire understanding and agreement of the parties with respect to the subject
matter hereof and supersede all prior agreements and understandings.


 


8.9          Other
Remedies. Except as otherwise provided herein, any
and all remedies herein expressly conferred upon a party shall be deemed
cumulative with and not exclusive of any other remedy conferred hereby or by
law, or in equity on such party, and the exercise of any one remedy shall not
preclude the exercise of any other.


 


8.10        Amendment
and Waivers. Any term or provision of this
Agreement may be amended, and the observance of any term of this Agreement may
be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a writing signed by the Seller and the
holders of at least a majority of the Preferred Stock then outstanding, and
such waiver or amendment, as the case may be, shall be binding upon all
Purchasers. The waiver by a party of any breach hereof or default in the
performance hereof shall not be deemed to constitute a waiver of any other
default or any succeeding breach or default. This Agreement may not be amended
or supplemented by any party hereto except pursuant to a written amendment
executed by the Seller and the holders of at least a majority of the Preferred
Stock then outstanding.  No amendment
shall be effected to impact a holder of Preferred Stock in a disproportionately
adverse fashion without the consent of such individual holder of Preferred
Stock.


 


8.11        No
Waiver. The failure of any party to enforce any of
the provisions hereof shall not be construed to be a waiver of the right of
such party thereafter to enforce such provisions.


 


8.12        Counterparts.
This Agreement may be executed in any number of counterparts, each of which
shall be an original as against any party whose signature appears thereon and
all of which together shall constitute one and the same instrument. This
Agreement shall become binding when one or more counterparts hereof, individually
or taken together, shall bear the signatures of all of the parties reflected
hereon as signatories. In the event that any signature is delivered by
facsimile transmission, 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 signature page
were an original thereof.


 


8.13        No
Third Party Beneficiary. Nothing expressed or
implied in this Agreement is intended, or shall be construed, to confer upon or
give any person other than the parties hereto and their respective heirs,
personal representatives, legal representatives, successors and permitted
assigns, any rights or remedies under or by reason of this Agreement.


 


8.14        Waiver
of Trial by Jury. 
THE PARTIES HERETO IRREVOCABLY WAIVE TRIAL BY JURY IN ANY SUIT, ACTION
OR PROCEEDING RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.


 


25

















 


IN WITNESS
WHEREOF, the parties hereto have executed this Agreement as of the date first
above written.


 


	
  SELLER:

  
	
   

  
	
  GENETRONICS BIOMEDICAL CORPORATION

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  James L. Heppell

  	
   

  
	
  Name: James L. Heppell

  
	
  Title: Chairman

  



 


26

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  East Hudson Inc. (BVI)

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Andrew Zacks

  	
   

  
	
  Name: Andrew Zacks

  
	
  Title: Managing Dir., Investment Mgr.

  
	
   

  
	
  Address:

  	
   c/o
  Conus Partners, Inc.

  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  	
   

  
	
   

  
	
  Telephone:

  	
  212-332-7265

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-332-7551

  	
   

  
	
   

  
	
  Email:

  	
  az@conusfund.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  73-156537U

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $60,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $0

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


27

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
   The
  Conus Fund L.P.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Andrew Zacks

  	
   

  
	
  Name: Andrew Zacks

  
	
  Title: Managing Member, G.P.

  
	
   

  
	
  Address:

  	
  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  	
   

  
	
   

  
	
  Telephone:

  	
  212-332-7265

  	
   

  
	
   

  
	
  Facsimile:

  	
   212-332-7551

  	
   

  
	
   

  
	
  Email:

  	
  az@conusfund.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  13-4025050

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $880,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $0

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


28

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  The Conus Fund Offshore Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Andrew Zacks

  	
   

  
	
  Name: Andrew Zacks

  
	
  Title: Managing Dir., Investment Mgr.

  
	
   

  
	
  Address:

  	
  c/o Conus Partners, Inc.

  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  	
   

  
	
   

  
	
  Telephone:

  	
  212-332-7265

  	
   

  
	
   

  
	
  Facsimile:

  	
   212-332-7551

  	
   

  
	
   

  
	
  Email:

  	
  az@conusfund.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  N/A

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $130,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $0

  	
   

  
												



 


 


[Omnibus Preferred
Stock and Warrant Purchase Agreement Signature Page]


 


29

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  The Conus Fund (QP), L.P.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Andrew Zacks

  	
   

  
	
  Name: Andrew Zacks

  
	
  Title: 
  Managing Member, G.P.

  
	
   

  
	
  Address:

  	
  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  	
   

  
	
   

  
	
  Telephone:

  	
  212-332-7265

  	
   

  
	
   

  
	
  Facsimile:

  	
   212-332-7551

  	
   

  
	
   

  
	
  Email:

  	
  az@conusfund.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  20-0080549

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $140,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $0

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


30

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Kinetic Capital Limited Partnership

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Frank Barker

  	
   

  
	
  Name: Frank Barker

  
	
  Title: Partner

  
	
   

  
	
  By:

  	
   /s/
  Dallas Ross

  	
   

  
	
  Name: Dallas Ross

  
	
  Title: Partner

  
	
   

  
	
  Address:

  	
  1460-777 Hornby Street

  Vancouver, B.C.

  Canada V6Z 1S4

  	
   

  
	
   

  
	
  Telephone:

  	
  604-692-2530

  	
   

  
	
   

  
	
  Facsimile:

  	
  604-692-2531

  	
   

  
	
   

  
	
  Email:

  	
  frank@kineticcapitalpartners.com

  dallas@kineticcapitalpartners.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $750,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $ NIL

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


31

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  JR Jay Public Investments, LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Jeffrey R. Jay

  	
   

  
	
  Name: Jeffrey R. Jay

  
	
  Title: Chairman & CEO

  
	
   

  
	
  Address:

  	
  P.O. Box 1511

  Greenwich, CT 06836

  	
   

  
	
   

  
	
  Telephone:

  	
  203-918-4321

  	
   

  
	
   

  
	
  Facsimile:

  	
  203-552-1724

  	
   

  
	
   

  
	
  Email:

  	
  jjay@bmrf.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  ###-##-####

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $500,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


32

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  RAM Capital Group, LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Mark A. Kovinsky

  	
   

  
	
  Name: Mark A. Kovinsky

  
	
  Title: Chief Investment Officer

  
	
   

  
	
  Address:

  	
  2210 Bluemount Road

  Monkton, MD 21111

  	
   

  
	
   

  
	
  Telephone:

  	
  410-357-5166

  	
   

  
	
   

  
	
  Facsimile:

  	
  410-357-5167

  	
   

  
	
   

  
	
  Email:

  	
  mkovinsky@ram-cap.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  01-0640767

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $300,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $0

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


33

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Park Place Columbia Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  T. Foulser

  	
   

  
	
  Name: T. Foulser

  
	
  Title: Settlements Controller Park Place
  Capital LTD as agent in process

  
	
   

  
	
  Address:

  	
  Chancery Hall

  52 Reid Street

  Bermuda

  	
   

  
	
   

  
	
  Telephone:

  	
  020-7408-4810

  	
   

  
	
   

  
	
  Facsimile:

  	
  020-7629-2439

  	
   

  
	
   

  
	
  Email:

  	
  Terry.foulser@parkplace.co.uk

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $130,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


34

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Park Place Galileo Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  T. Foulser

  	
   

  
	
  Name: T. Foulser

  
	
  Title: Settlements Controller Park Place
  Capital LTD as agent in process

  
	
   

  
	
  Address:

  	
  Chancery Hall

  52 Reid Street

  Bermuda

  	
   

  
	
   

  
	
  Telephone:

  	
  020-7408-4810

  	
   

  
	
   

  
	
  Facsimile:

  	
  020-7629-2439

  	
   

  
	
   

  
	
  Email:

  	
  Terry.foulser@parkplace.co.uk

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $170,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


35

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Aran Asset Management SA

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Jakob Baumgartner

  	
   

  
	
  Name: Jakob Baumgartner

  
	
  Title: Director Portfolio / Manager

  
	
   

  
	
  Address:

  	
  Alpenstrasse 11

  P.O. Box 4010

  CH-6304 Zug

  Switzerland

  	
   

  
	
   

  
	
  Telephone:

  	
  041-726-0470

  	
   

  
	
   

  
	
  Facsimile:

  	
  041-726-0477

  	
   

  
	
   

  
	
  Email:

  	
  baumgartner@aransa.ch

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $200,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


36

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Finter Bank Zurich

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Christian Russenberger

  	
   

  
	
  Name: Christian Russenberger

  
	
  Title: JVP

  
	
   

  
	
  By:

  	
   /s/
  F. Zimmerman

  	
   

  
	
  Name: F. Zimmerman

  
	
  Title: Asst. V.P.

  
	
   

  
	
  Address:

  	
  Claridenstrasse 35

  8002 Zurich

  	
   

  
	
   

  
	
  Telephone:

  	
  41-1289-5615

  	
   

  
	
   

  
	
  Facsimile:

  	
  41-1289-5762

  	
   

  
	
   

  
	
  Email:

  	
  c.russenberger@finter.ch

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  N.A.

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $250,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


37

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Bernard Leroux

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Bernard Leroux

  	
   

  
	
  Name: Bernard Leroux

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  400 Burrard Street

  21st Floor

  Vancouver, B.C.

  Canada V6C 3A6

  	
   

  
	
   

  
	
  Telephone:

  	
  604-697-7407

  	
   

  
	
   

  
	
  Facsimile:

  	
  604-697-7480

  	
   

  
	
   

  
	
  Email:

  	
  bleroux@haywood.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $100,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


38

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Glenariff Investments Ltd

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  G. F. Galbraith

  	
   

  
	
  Name: G. F. Galbraith

  
	
  Title: President

  
	
   

  
	
  Address:

  	
  2741 30th Street

  Vernon, B.C.

  Canada V1T 5C6

  	
   

  
	
   

  
	
  Telephone:

  	
  250-542-5900

  	
   

  
	
   

  
	
  Facsimile:

  	
  250-542-9329

  	
   

  
	
   

  
	
  Email:

  	
  gfg@shaw.ca

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  704-838-804

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $50,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


39

















 


 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Colin Paul Sabiston

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Paul Sabiston

  	
   

  
	
  Name: Paul Sabiston

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  2810 Bellevue Avenue

  West Vancouver, B.C.

  Canada V7V 1E8

  	
   

  
	
   

  
	
  Telephone:

  	
  604-925-1994

  	
   

  
	
   

  
	
  Facsimile:

  	
  604-925-1948

  	
   

  
	
   

  
	
  Email:

  	
  sabiston@telus.net

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  442-453-865

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $50,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


40

















 


 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Mike Fitzmaurice

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Mike Fitzmaurice

  	
   

  
	
  Name: Mike Fitzmaurice

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  505-1160 Burrard Street

  Vancouver, B.C.

  	
   

  
	
   

  
	
  Telephone:

  	
  604-671-2331

  	
   

  
	
   

  
	
  Facsimile:

  	
  604-685-9449

  	
   

  
	
   

  
	
  Email:

  	
  mikefitz@telus.net

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  450-320-296

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $50,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


41

















 


 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Catalyst Capital LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Kiran Sidhu

  	
   

  
	
  Name: Kiran Sidhu

  
	
  Title: Managing Member

  
	
   

  
	
  Address:

  	
  6720 Muirlands Drive

  LaJolla, CA 92037

  	
   

  
	
   

  
	
  Telephone:

  	
  858-459-0055

  	
   

  
	
   

  
	
  Facsimile:

  	
  702-920-8061

  	
   

  
	
   

  
	
  Email:

  	
  ksidhu@catalystllc.net

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  88-0430440

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $150,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


42

















 


 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Brian Noble

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Brian Noble

  	
   

  
	
  Name: Brian Noble

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  3558 Blenheim

  Vancouver, B.C.

  V6L 2X9

  	
   

  
	
   

  
	
  Telephone:

  	
  604-733-4481          604-506-5075

  	
   

  
	
   

  
	
  Facsimile:

  	
  604-682-2542

  	
   

  
	
   

  
	
  Email:

  	
  bnoble@blenz.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  718-958-846 (CDN SIN)

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $140,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


43

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Northern Rivers Innovation Fund LP

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Peter Blacklock

  	
   

  
	
  Name: Peter Blacklock

  
	
  Title: Vice President, Secretary,
  Treasurer, Northern Rivers General Partner Ltd.

  
	
   

  
	
  Address:

  	
  Royal Bank Plaza, South Tower

  200 Bay Street, Suite 2305

  Toronto, Ontario

  M5J 2J2

  	
   

  
	
   

  
	
  Telephone:

  	
  416-597-1200

  	
   

  
	
   

  
	
  Facsimile:

  	
  416-597-1202

  	
   

  
	
   

  
	
  Email:

  	
  dc@northernriversfunds.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $100,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


44

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  B.C. Equities Inc.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Don Rix

  	
   

  
	
  Name: Don Rix

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  101-4606 Canada Way

  Burnaby, B.C.

  Canada V5G 1K5

  	
   

  
	
   

  
	
  Telephone:

  	
  604-737-7224

  	
   

  
	
   

  
	
  Facsimile:

  	
  604-737-7204

  	
   

  
	
   

  
	
  Email:

  	
  drix@quik.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  91-0962561

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $20,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


45

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Otape Investments LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Richard M. Coyne

  	
   

  
	
  Name: Richard M. Coyne

  
	
  Title: General Counsel

  
	
   

  
	
  Address:

  	
  One Manhattanville Road

  Purchase, NY 10577

  	
   

  
	
   

  
	
  Telephone:

  	
  (914) 694-5857

  	
   

  
	
   

  
	
  Facsimile:

  	
  (914) 694-6335

  	
   

  
	
   

  
	
  Email:

  	
  Paul.Masters@ox.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  52-2153962

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $250,000

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $-0-

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


46

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  SCO Capital Partners LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Steven Rouhandeh

  	
   

  
	
  Name: Steven Rouhandeh

  
	
  Title: Chairman

  
	
   

  
	
  Address:

  	
  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-554-4235

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-554-4058

  	
   

  
	
   

  
	
  Email:

  	
  srouhandeh@scogroup.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  52-2247879

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $990,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


47

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  The Chloe H. Rouhandeh Trust

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Steven Rouhandeh

  	
   

  
	
  Name: Steven Rouhandeh

  
	
  Title: Trustee

  
	
   

  
	
  Address:

  	
  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-554-4235

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-554-4058

  	
   

  
	
   

  
	
  Email:

  	
  srouhandeh@scogroup.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  13-7219208

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $90,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


48

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  The Sophie C. Rouhandeh Trust

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Steven Rouhandeh

  	
   

  
	
  Name: Steven Rouhandeh

  
	
  Title: Trustee

  
	
   

  
	
  Address:

  	
  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-554-4235

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-554-4058

  	
   

  
	
   

  
	
  Email:

  	
  srouhandeh@scogroup.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  13-7219207

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $90,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


49

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  The Steven H. Rouhandeh 1999 Family Trust

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Lynn A. Frielinghaus

  	
   

  
	
  Name: Lynn A. Frielinghaus

  
	
  Title: Trustee

  
	
   

  
	
  Address:

  	
  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-554-4235

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-554-4058

  	
   

  
	
   

  
	
  Email:

  	
  srouhandeh@scogroup.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  13-7219200

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $90,000

  	
   

  
												



 


 


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50

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  SDS Merchant Fund, LP

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Scott E. Derby

  	
   

  
	
  Name: Scott E. Derby

  
	
  Title: General Counsel

  
	
   

  
	
  Address:

  	
  53 Forest Avenue, 2nd Floor

  Old Greenwich, CT 06870

  Attn: Scott E. Derby

  	
   

  
	
   

  
	
  Telephone:

  	
  203-967-5880

  	
   

  
	
   

  
	
  Facsimile:

  	
  203-967-5851

  	
   

  
	
   

  
	
  Email:

  	
  scott@sdscapital.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  13-4128790

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $1,200,000

  	
   

  
												



 


 


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51

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  BayStar Capital II, L.P.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Steven M. LaMar

  	
   

  
	
  Name: Steven M. LaMar

  
	
  Title: Managing Partner

  
	
   

  
	
  Address:

  	
  80 E. Sir Francis Drake Boulevard

  Suite 2B

  Larkspur, CA 94939

  	
   

  
	
   

  
	
  Telephone:

  	
  415-834-4620

  	
   

  
	
   

  
	
  Facsimile:

  	
  415-834-4601

  	
   

  
	
   

  
	
  Email:

  	
  slamar@baystarcapital.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  94-3408990

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $1,800,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


52

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  North Sound Legacy Fund LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Thomas McAuley

  	
   

  
	
  Name: Thomas McAuley

  
	
  Title: Chief Investment Officer

  
	
   

  
	
  Address:

  	
  53 Forest Avenue, Suite 202

  Old Greenwich, CT 06870

  Attn: Andrew Wilder, CFO

  	
   

  
	
   

  
	
  Telephone:

  	
  203-967-5700

  	
   

  
	
   

  
	
  Facsimile:

  	
  203-967-5701

  	
   

  
	
   

  
	
  Email:

  	
  andrew@northsound.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  52-2324838

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $90,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


53

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  North Sound Legacy International Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Thomas McAuley

  	
   

  
	
  Name: Thomas McAuley

  
	
  Title: Chief Investment Officer

  
	
   

  
	
  Address:

  	
  53 Forest Avenue, Suite 202

  Old Greenwich, CT 06870

  Attn: Andrew Wilder

  	
   

  
	
   

  
	
  Telephone:

  	
  203-967-5700

  	
   

  
	
   

  
	
  Facsimile:

  	
  203-967-5701

  	
   

  
	
   

  
	
  Email:

  	
  andrew@northsound.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  NA - Not US

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $900,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


54

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  North Sound Legacy Institutional Fund LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Thomas McAuley

  	
   

  
	
  Name: Thomas McAuley

  
	
  Title: Chief Investment Officer

  
	
   

  
	
  Address:

  	
  53 Forest Avenue, Suite 202

  Old Greenwich, CT 06870

  Attn: Andrew Wilder

  	
   

  
	
   

  
	
  Telephone:

  	
  203-967-5700

  	
   

  
	
   

  
	
  Facsimile:

  	
  203-967-5701

  	
   

  
	
   

  
	
  Email:

  	
  andrew@northsound.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  06-1627435

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $810,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


55

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  ProMed Partners, L.P.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Barry Kurokawa

  	
   

  
	
  Name: Barry Kurokawa

  
	
  Title: Managing Director

  
	
   

  
	
  Address:

  	
  237 Park Avenue, 9th Floor

  New York, NY 10017

  	
   

  
	
   

  
	
  Telephone:

  	
  212-692-3626

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-692-3627

  	
   

  
	
   

  
	
  Email:

  	
  bkurokawa@promedmgmt.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  04-3307733

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $0

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $420,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


56

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  ProMed Offshore Fund, Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Barry Kurokawa

  	
   

  
	
  Name: Barry Kurokawa

  
	
  Title: Managing Director

  
	
   

  
	
  Address:

  	
  237 Park Avenue, 9th Floor

  New York, NY 10017

  	
   

  
	
   

  
	
  Telephone:

  	
  212-692-3626

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-692-3627

  	
   

  
	
   

  
	
  Email:

  	
  bkurokawa@promedmgmt.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  04-3559645

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $0

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $90,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


57

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Xmark Fund, Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Mitchell D. Kaye

  	
   

  
	
  Name: Mitchell D. Kaye

  
	
  Title: CIO

  
	
   

  
	
  Address:

  	
  152 West 57th Street, 21st Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-247-8200

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-247-1329

  	
   

  
	
   

  
	
  Email:

  	
  MKaye@xmarkfunds.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $480,000

  	
   

  
												



 


 


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58

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Xmark Fund, L.P.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Mitchell D. Kaye

  	
   

  
	
  Name: Mitchell D. Kaye

  
	
  Title: CIO

  
	
   

  
	
  Address:

  	
  152 West 57th Street, 21st Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-247-8200

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-247-1329

  	
   

  
	
   

  
	
  Email:

  	
  MKaye@xmarkfunds.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $270,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


59

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Paul Scharfer

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Paul Scharfer

  	
   

  
	
  Name: Paul Scharfer

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  265 East 66th Street

  Apt. 6-C

  New York, NY 10021

  	
   

  
	
   

  
	
  Telephone:

  	
  917-763-2015

  	
   

  
	
   

  
	
  Facsimile:

  	
   

  	
   

  
	
   

  
	
  Email:

  	
  pscharfer@aol.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  ###-##-####

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $720,000

  	
   

  
												



 


 


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Preferred Stock and Warrant Purchase Agreement Signature Page]


 


60

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Shekhar K. Basu

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Shekhar K. Basu

  	
   

  
	
  Name: Shekhar K. Basu

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  39 Heathcote Drive

  Mount Kisco, NY 10549

  	
   

  
	
   

  
	
  Telephone:

  	
  212-521-1450

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-755-9122

  	
   

  
	
   

  
	
  Email:

  	
  sbasu@greenberg.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  ###-##-####

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $150,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


61

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  John W. Mellors

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  John W. Mellors

  	
   

  
	
  Name: John W. Mellors

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  201 Beech Street

  Pittsburgh, PA 15218

  	
   

  
	
   

  
	
  Telephone:

  	
  412-760-3695

  	
   

  
	
   

  
	
  Facsimile:

  	
   

  	
   

  
	
   

  
	
  Email:

  	
  jmellors@ix.netcom.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  ###-##-####

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $30,000

  	
   

  
												



 


 


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Preferred Stock and Warrant Purchase Agreement Signature Page]


 


62

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Crescent International Ltd.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  M. Craw

  	
   

  	
  /s/ M. Brezzi

  	 

	
  Name: M. Craw

  	
   

  	
  M. Brezzi

  	 

	
  Title: Authorized Signatories

  
	
   

  
	
  Address:

  	
  c/o GreenLight (Switzerland) S.A.

  84, av. Louis-Casai

  P.O. Box 161

  CH-1216 Cointrin, Geneva

  Switzerland

  	
   

  
	
   

  
	
  Telephone:

  	
  41-22-791-7256

  	
   

  
	
   

  
	
  Facsimile:

  	
  41-22-929-5394

  	
   

  
	
   

  
	
  Email:

  	
  info@greenlight.dmitrust.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  N/A

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $600,000

  	
   

  
															



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


63

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  David Israel

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  David Israel

  	
   

  
	
  Name: David Israel

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  983 Park Avenue

  New York, NY 10028

  	
   

  
	
   

  
	
  Telephone:

  	
  212-861-9550

  	
   

  
	
   

  
	
  Facsimile:

  	
  516-593-9634

  	
   

  
	
   

  
	
  Email:

  	
   

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $150,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


64

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Kenneth S. Pilot

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Kenneth S. Pilot

  	
   

  
	
  Name: Kenneth S. Pilot

  
	
  Title: 

  
	
   

  
	
  Address:

  	
  401 East 60th Street, Apt. 29A

  New York, NY 10022

  	
   

  
	
   

  
	
  Telephone:

  	
  212-758-0538

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-759-5189

  	
   

  
	
   

  
	
  Email:

  	
  Ken-Pilot@yahoo.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  ###-##-####

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $90,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


65

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  QFinance, Inc.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Tom Perkins

  	
   

  
	
  Name: Tom Perkins

  
	
  Title: President

  
	
   

  
	
  Address:

  	
  4709 Creekstone Drive, Suite 200

  Durham, NC 27703

  	
   

  
	
   

  
	
  Telephone:

  	
  919-998-2080

  	
   

  
	
   

  
	
  Facsimile:

  	
  919-998-2399

  	
   

  
	
   

  
	
  Email:

  	
  Tom.perkins@quintiles.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  62-1784909

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $1.5 million

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


66

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Ellis International Ltd. Inc.

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Julian Ungar

  	
   

  
	
  Name: Julian Ungar

  
	
  Title: Director

  
	
   

  
	
  Address:

  	
  53rd Street, Urbanization Obarrio

  Swiss Tower, 16th Floor

  Panama

  Republic of Panama

  	
   

  
	
   

  
	
  Telephone:

  	
  507-265-7777

  	
   

  
	
   

  
	
  Facsimile:

  	
  507-265-7700

  	
   

  
	
   

  
	
  Email:

  	
   

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  Foreign Corp

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $210,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


67

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  Gamma Opportunity Capital Partners, LP

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Christopher Rossman

  	
   

  
	
  Name: Christopher Rossman

  
	
  Title: Managing Director, Gamma Capital
  Advisors, Ltd (as agent)

  
	
   

  
	
  Address:

  	
  British Colonial Centre of Commerce

  One Bay Street, Suite 401

  Nassau, The Bahamas

  	
   

  
	
   

  
	
  Telephone:

  	
  242-322-6656

  	
   

  
	
   

  
	
  Facsimile:

  	
  242-322-6657

  	
   

  
	
   

  
	
  Email:

  	
   

  	
   

  
	
   

  
	
  SSN/EIN:

  	
   

  	
   

  
	
   

  
	
   

  
	
  Amount of Investment (Tranche A (Series A
  Preferred only)):

  	
  $

  	
   

  
	
   

  
	
  Amount of Investment (Tranche B (one-third
  Series A Preferred,

  
	
   

  
	
  two-thirds Series B Preferred)):

  	
  $480,000

  	
   

  
												



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


68

















 


	
  PURCHASERS:

  
	
   

  
	
  Print Exact Name:

  	
  SCO Securities LLC

  	
   

  
	
   

  
	
   

  
	
  By:

  	
   /s/
  Jeffrey B. Davis

  	
   

  
	
  Name: Jeffrey B. Davis

  
	
  Title: President

  
	
   

  
	
  Address:

  	
  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  	
   

  
	
   

  
	
  Telephone:

  	
  212-554-4158

  	
   

  
	
   

  
	
  Facsimile:

  	
  212-554-4058

  	
   

  
	
   

  
	
  Email:

  	
  jdavis@scogroup.com

  	
   

  
	
   

  
	
  SSN/EIN:

  	
  22-3538992

  	
   

  
	
   

  
	
  Placement
  Agent Warrants

  
								



 


 


[Omnibus
Preferred Stock and Warrant Purchase Agreement Signature Page]


 


69

















 


Schedule 1


 


to Preferred
Stock and Warrant Purchase Agreement


 


Purchasers and
Shares of Preferred Stock and Warrants


 


	
  Name, Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of
  Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase
  Price

  	
   

  
	
  I.  Tranche A Purchasers

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  East Hudson Inc. (BVI)

  c/o Conus Partners, Inc.

  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  Attn:  Andrew Zacks

  Tel:    212-332-7265

  Fax:   212-332-7551

  az@conusfund.com

  	
   

  	
   

  	
   

  	
  6

  	
   

  	
  40,000

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  60,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Conus Fund L.P.

  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  Attn:  Andrew Zacks

  Tel:    212-332-7265

  Fax:   212-332-7551

  az@conusfund.com

  	
   

  	
   

  	
   

  	
  88

  	
   

  	
  586,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  880,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Conus Fund Offshore Ltd.

  c/o Conus Partners, Inc.

  1 Rockefeller Plaza, 19th Floor

  New York, NY 10020

  Attn:  Andrew Zacks

  Tel:    212-332-7265

  Fax:   212-332-7551

  az@conusfund.com

  	
   

  	
   

  	
   

  	
  13

  	
   

  	
  86,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  130,000

  	
   

  



 

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  The Conus Fund QP, L.P.

  1 Rockefeller Plaza

  19th Floor

  New York, NY 10020

  Attn:  Andrew Zacks

  Tel:    212-332-7265

  Fax:   212-332-7551  

  az@conusfund.com

  	
   

  	
   

  	
   

  	
  14

  	
   

  	
  93,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  140,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kinetic Capital Limited Partnership

  1460-777 Hornby Street

  Vancouver, B.C.

  V6Z 1S4

  Attn:  Dallas Ross

  Tel:    604-692-2530

  Fax:   604-692-2531

  dallas@kineticcapitalpartners.com

  frank@kineticcapitalpartners.com

  	
   

  	
   

  	
   

  	
  75

  	
   

  	
  500,000

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  750,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  JR Jay Public Investments, LLC

  P.O. Box 1511

  Greenwich, CT 06836

  Attn:  Jeffrey R. Jay

  Tel:    203-918-4321

  Fax:   203-552-1724

  jjay@bmrf.com

  	
   

  	
   

  	
   

  	
  50

  	
   

  	
  333,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  500,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  RAM Capital Group, LLC

  2210 Bluemount Road

  Monkton, MD 21111

  Attn:  Mark A. Kovinsky

  Tel:    410-357-5166

  Fax:   410-357-5167

  mkovinsky@ram-cap.com

  	
   

  	
   

  	
   

  	
  30

  	
   

  	
  200,000

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  300,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Park Place Columbia Ltd.

  Chancery Hall

  52 Reid Street

  	
   

  	
   

  	
   

  	
  13

  	
   

  	
  86,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  130,000

  	
   

  



 


2

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  Hamilton HM12

  Bermuda

  Attn:  Terry Foulser

  Tel:    011-44-20-7408-4810

  Fax:   011-44-20-7629-2439

  Terry.foulser@parkplace.co.uk

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Park Place Galileo Ltd.

  Chancery Hall

  52 Reid Street

  Hamilton HM12

  Bermuda

  Attn:  Terry Foulser

  Tel:    011-44-20-7408-4810

  Fax:   011-44-20-7629-2439

  Terry.foulser@parkplace.co.uk

  	
   

  	
   

  	
   

  	
  17

  	
   

  	
  113,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  170,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Aran Asset Management SA

  Alpenstrasse 11

  P.O. Box 4010

  CH-6304 Zug

  Switzerland

  Tel:    011-41-41-726-0470

  Fax:   011-41-41-726-0477

  baumgartner@aransa.ch

  	
   

  	
   

  	
   

  	
  20

  	
   

  	
  133,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  200,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Finter Bank Zurich

  Claridenstrasse 35

  CH-8002 Zurich

  Switzerland

  Attn:  Christian Russenberger

  Tel:    011-41-1289-5615

  Fax:   011-41-1289-5762

  c.russenberger@finter.ch

  	
   

  	
   

  	
   

  	
  25

  	
   

  	
  166,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  250,000

  	
   

  



 


3

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  Bernard Leroux

  1588 23rd Street

  West Vancouver, B.C.

  V7V 4W9

  Tel:    604-697-7407

  Fax:   604-697-7480

  bleroux@haywood.com

  

  Registration:

  Haywood Securities ITF Bernard Leroux

  400 Burrard Street

  21st Floor

  Vancouver, B.C.

  V6C 3A6

  	
   

  	
   

  	
   

  	
  10

  	
   

  	
  66,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Glenariff Investments Ltd

  2741 30th Street

  Vernon, B.C.

  V1T 5C6

  Attn:  George F. Galbraith

  Tel:    250-542-5900

  Fax:   250-542-9329

  gfg@shaw.ca

  

  Registration:

  Haywood Securities ITF Glenariff

  Investments Ltd

  400 Burrard Street

  21st Floor

  Vancouver, B.C.

  V6C 3A6

  	
   

  	
   

  	
   

  	
  5

  	
   

  	
  33,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  50,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Colin Paul Sabiston

  2810 Bellevue Avenue

  West Vancouver, B.C.

  V7V 1E8

  Tel:    604-925-1994

  Fax:   604-925-1948

  	
   

  	
   

  	
   

  	
  5

  	
   

  	
  33,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  50,000

  	
   

  



 


4

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  sabiston@telus.net

  

  Registration:

  Haywood Securities ITF Colin Paul

  Sabiston

  400 Burrard Street

  21st Floor

  Vancouver, B.C.

  V6C 3A6

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Mike Fitzmaurice

  505-1160 Burrard Street

  Vancouver, B.C.

  V6Z 2E3

  Tel:    604-671-2331

  Fax:   604-685-9449

  mikefitz@telus.net

  	
   

  	
   

  	
   

  	
  5

  	
   

  	
  33,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  50,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Catalyst Capital LLC

  6720 Muirlands Drive

  LaJolla, CA 92037

  Attn:  Kiran Sidhu

  Tel:    858-459-0055

  Fax:   702-920-8061

  ksidhu@catalystllc.net

  	
   

  	
   

  	
   

  	
  15

  	
   

  	
  100,000

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  150,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Brian Noble

  3558 Blenheim

  Vancouver, B.C.

  V6L 2X9

  Tel:    604-733-4481

  Fax:   604-682-2542

  bnoble@blenz.com

  	
   

  	
   

  	
   

  	
  14

  	
   

  	
  93,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  140,000

  	
   

  



 


5

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  Northern Rivers Innovation
  Fund LP

  Royal Bank Plaza, South Tower

  2305-200 Bay Street

  Toronto, Ontario

  M5J 2J2

  Attn:  Hugh Cleland

  Tel:    416-597-1200

  Fax:   416-597-1202

  dc@northernriversfunds.com

  

  Registration:

  Nesbitt Burns ITF Account 402 200 9122

  Prime Broker Services

  36th Floor

  1st Canadian Place

  Toronto, Ontario

  M5X 1H3

  	
   

  	
   

  	
   

  	
  10

  	
   

  	
  66,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  100,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  B.C. Equities Inc.

  101-4606 Canada Way

  Burnaby, B.C.

  V5G 1K5

  Attn: Don Rix

  Tel:    604-737-7224

  Fax:   604-737-7204

  drix@quik.com

  	
   

  	
   

  	
   

  	
  2

  	
   

  	
  13,333

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  20,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Otape Investments LLC

  One Manhattanville Road

  Purchase, NY  10577

  Attn: Paul Masters

  Tel:    914-694-5857

  Fax:   914-694-5335

  Paul.Masters@ox.com

  	
   

  	
   

  	
   

  	
  25

  	
   

  	
  166,667

  	
   

  	
  0

  	
   

  	
  0

  	
   

  	
  $

  	
  250,000

  	
   

  



 


6

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  II.  Tranche B Purchasers

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCO Capital Partners LLC

  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  Attn:  Steven Rouhandeh

  Tel:    212-554-4235

  Fax:   212-554-4058

  srouhandeh@scogroup.com

  	
   

  	
  Wiggin & Dana LLP

  400 Atlantic Street

  Stamford, CT  06901

  Attn: Michael Grundei

  Tel:  203-363-7630

  Tel:  203-363-7676

  mgrundei@wiggin.com

  	
   

  	
  33

  	
   

  	
  220,000

  	
   

  	
  66

  	
   

  	
  377,143

  	
   

  	
  $

  	
  990,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Chloe H. Rouhandeh Trust

  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  Attn:  Steven Rouhandeh, Trustee

  Tel:    212-554-4235

  Fax:   212-554-4058

  srouhandeh@scogroup.com

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  20,000

  	
   

  	
  6

  	
   

  	
  34,286

  	
   

  	
  $

  	
  90,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Sophie C. Rouhandeh Trust

  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  Attn:  Steven Rouhandeh, Trustee

  Tel:    212-554-4235

  Fax:   212-554-4058

  srouhandeh@scogroup.com

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  20,000

  	
   

  	
  6

  	
   

  	
  34,286

  	
   

  	
  $

  	
  90,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  The Steven H. Rouhandeh 1999 Family Trust

  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  Attn:  Lynn A. Frielinghaus, Trustee

  Tel:    212-554-4235

  Fax:   212-554-4058

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  20,000

  	
   

  	
  6

  	
   

  	
  34,286

  	
   

  	
  $

  	
  90,000

  	
   

  



 


7

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  SDS Merchant Fund, LP

  53 Forest Avenue, 2nd Floor

  Old Greenwich, CT 06870

  Attn:  Scott Derby

  Tel:    203-967-5880

  Fax:   203-967-5851

  scott@sdscapital.com

  	
   

  	
   

  	
   

  	
  40

  	
   

  	
  266,667

  	
   

  	
  80

  	
   

  	
  457,143

  	
   

  	
  $

  	
  1,200,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  BayStar Capital II, L.P.

  80 E. Sir Francis Drake Boulevard

  Suite 2B

  Larkspur, CA  94939

  Attn:  Steven M. LaMar

  Tel:    415-834-4620

  Fax:   415-834-4601

  slamar@baystarcapital.com

  	
   

  	
   

  	
   

  	
  60

  	
   

  	
  400,000

  	
   

  	
  120

  	
   

  	
  685,714

  	
   

  	
  $

  	
  1,800,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  North Sound Legacy Fund LLC

  53 Forest Avenue, Suite 202

  Old Greenwich, CT 06870

  Attn:  Andrew Wilder

  Tel:    203-967-5700

  Fax:   203-967-5701

  andrew@northsound.com

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  20,000

  	
   

  	
  6

  	
   

  	
  34,286

  	
   

  	
  $

  	
  90,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  North Sound Legacy International Ltd.

  53 Forest Avenue, Suite 202

  Old Greenwich, CT 06870

  Attn:  Andrew Wilder

  Tel:    203-967-5700

  Fax:   203-967-5701  andrew@northsound.com

  	
   

  	
   

  	
   

  	
  30

  	
   

  	
  200,000

  	
   

  	
  60

  	
   

  	
  342,857

  	
   

  	
  $

  	
  900,000

  	
   

  



 


8

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  North Sound Legacy Institutional Fund LLC

  53 Forest Avenue, Suite 202

  Old Greenwich, CT 06870

  Attn:  Andrew Wilder

  Tel:    203-967-5700

  Fax:   203-967-5701

  andrew@northsound.com

  	
   

  	
   

  	
   

  	
  27

  	
   

  	
  180,000

  	
   

  	
  54

  	
   

  	
  308,571

  	
   

  	
  $

  	
  810,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ProMed Partners, L.P.

  237 Park Avenue, 9th Floor

  New York, NY 10017

  Attn:  Barry Kurokawa

  Tel:    212-692-3626

  Fax:   212-692-3627

  bkurokawa@promedmgmt.com

  	
   

  	
   

  	
   

  	
  14

  	
   

  	
  93,333

  	
   

  	
  28

  	
   

  	
  160,000

  	
   

  	
  $

  	
  420,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  ProMed Offshore Fund, Ltd.

  237 Park Avenue, 9th Floor

  New York, NY 10017

  Attn:  Barry Kurokawa

  Tel:    212-692-3626

  Fax:   212-692-3627

  bkurokawa@promedmgmt.com

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  20,000

  	
   

  	
  6

  	
   

  	
  34,286

  	
   

  	
  $

  	
  90,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Xmark Fund, Ltd.

  152 West 57th Street, 21st Floor

  New York, NY 10019

  Attn:  Mitchell Kaye

  Tel:    212-247-8200

  Fax:   212-247-1329

  MKaye@xmarkfunds.com

  	
   

  	
  Lowenstein Sandler PC

  65 Livingston Avenue

  Roseland, NJ  07068

  Attn: Steven E. Siesser

  Tel: 973-597-2506

  Fax: 973-597-2507

  ssiesser@lowenstein.com

  	
   

  	
  16

  	
   

  	
  106,667

  	
   

  	
  32

  	
   

  	
  182,857

  	
   

  	
  $

  	
  480,000

  	
   

  



 


9

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  Xmark Fund, L.P.

  152 West 57th Street, 21st Floor

  New York, NY 10019

  Attn:  Mitchell Kaye

  Tel:    212-247-8200

  Fax:   212-247-1329

  MKaye@xmarkfunds.com

  	
   

  	
  Lowenstein Sandler PC

  65 Livingston Avenue

  Roseland, NJ  07068

  Attn: Steven E. Siesser

  Tel: 973-597-2506

  Fax: 973-597-2507

  ssiesser@lowenstein.com

  	
   

  	
  9

  	
   

  	
  60,000

  	
   

  	
  18

  	
   

  	
  102,857

  	
   

  	
  $

  	
  270,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Paul Scharfer

  265 East 66th Street

  Apt. 6-C

  New York, NY 10021

  Tel:    917-763-2015

  Fax:  

  pscharfer@aol.com

  	
   

  	
   

  	
   

  	
  24

  	
   

  	
  160,000

  	
   

  	
  48

  	
   

  	
  274,286

  	
   

  	
  $

  	
  720,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Shekhar K. Basu

  39 Heathcote Drive

  Mount Kisco, NY 10549

  Tel:    212-521-1450

  Fax:   212-755-9122

  sbasu@greenberg.com

  	
   

  	
   

  	
   

  	
  5

  	
   

  	
  33,333

  	
   

  	
  10

  	
   

  	
  57,143

  	
   

  	
  $

  	
  150,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  John W. Mellors

  201 Beech Street

  Pittsburgh, PA  15218

  Tel:    412-760-3695

  Fax:

  jmellors@ix.netcom.com

  	
   

  	
   

  	
   

  	
  1

  	
   

  	
  6,667

  	
   

  	
  2

  	
   

  	
  11,429

  	
   

  	
  $

  	
  30,000

  	
   

  



 


10

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  Crescent International Ltd

  c/o GreenLight (Switzerland) S.A.

  84, av. Louis-Casai

  P.O. Box 161

  CH-1216 Cointrin, Geneva

  Switzerland

  Attn:  Maxi Brezzi

  Tel:    011-41-22-791-7256

  Fax:   011-41-22-929-5394

  info@greenlight.dmitrust.com

  	
   

  	
   

  	
   

  	
  20

  	
   

  	
  133,333

  	
   

  	
  40

  	
   

  	
  228,571

  	
   

  	
  $

  	
  600,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  David Israel

  983 Park Avenue

  New York, NY  10028

  Tel:    212-861-9550

  Fax:   516-593-9634

  	
   

  	
   

  	
   

  	
  5

  	
   

  	
  33,333

  	
   

  	
  10

  	
   

  	
  57,143

  	
   

  	
  $

  	
  150,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Kenneth S. Pilot

  401 East 60th Street, Apt. 29A

  New York, NY 10022

  Tel:    212-758-0538

  Fax:   212-759-5189

  Ken-Pilot@yahoo.com

  	
   

  	
   

  	
   

  	
  3

  	
   

  	
  20,000

  	
   

  	
  6

  	
   

  	
  34,286

  	
   

  	
  $

  	
  90,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  QFinance, Inc.

  4709 Creekstone Drive, Suite 200

  Durham, NC 27703

  Attn:  Tom Perkins

  Tel:    919-998-2080

  Fax:   919-998-2399

  Tom.perkins@quintiles.com

  	
   

  	
   

  	
   

  	
  50

  	
   

  	
  333,333

  	
   

  	
  100

  	
   

  	
  571,429

  	
   

  	
  $

  	
  1,500,000

  	
   

  



 


11

















 


	
  Name,
  Address and Fax Number of

  Purchaser and Registration Instructions

  	
   

  	
  Copies of Notices to

  	
   

  	
  Shares of

  Series A

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series A

  Warrants

  	
   

  	
  Share of

  Series B

  Preferred

  Stock

  Purchased

  	
   

  	
  Common

  Stock

  Underlying

  Series B

  Warrants

  	
   

  	
  Purchase Price

  	
   

  
	
  Ellis International Ltd.
  Inc.

  53rd Street, Urbanization Obarrio

  Swiss Tower, 16th Floor

  Panama

  Republic of Panama

  Attn:  Julian Ungar

  Tel:    507-265-7777

  Fax:   507-265-7700

  	
   

  	
   

  	
   

  	
  7

  	
   

  	
  46,667

  	
   

  	
  14

  	
   

  	
  80,000

  	
   

  	
  $

  	
  210,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Gamma Opportunity Capital
  Partners, LP

  British Colonial Centre of Commerce

  One Bay Street, Suite 401

  Nassau, The Bahamas

  Attn:  Christopher Rossman

  Tel:    242-322-6656

  Fax:   242-322-6657

  	
   

  	
   

  	
   

  	
  16

  	
   

  	
  106,667

  	
   

  	
  32

  	
   

  	
  182,857

  	
   

  	
  $

  	
  480,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  Totals:

  	
   

  	
   

  	
   

  	
  817

  	
   

  	
  5,446,666

  	
   

  	
  750

  	
   

  	
  4,285,716

  	
   

  	
  $

  	
  15,670,000

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  III.  Placement Agent Warrants

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  	
   

  
	
  SCO Securities LLC

  1285 Avenue of the Americas, 35th Floor

  New York, NY 10019

  Attn:  Steven Rouhandeh

  Tel:    212-554-4235

  Fax:   212-554-4058

  srouhandeh@scogroup.com

  	
   

  	
  Wiggin & Dana LLP

  400 Atlantic Street

  Stamford, CT  06901

  Attn: Michael Grundei

  Tel:  203-363-7630

  Tel:  203-363-7676

  mgrundei@wiggin.com

  	
   

  	
  0

  	
   

  	
  816,833

  	
   

  	
  0

  	
   

  	
  971,428

  	
   

  	
  0

  	
   

  



 


 


12