ex10-6.htm

Exhibit
    10.6

    


    
      


       

      


       

      


    

    
      


       

      XA,
        INC.

    

    
       

      SECURITIES
        PURCHASE AGREEMENT

       

    

    
      As
        of
        December 21, 2007

       

      


    

    
       

    

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    


    THIS
      SECURITIES PURCHASE
      AGREEMENT, dated as of this 21st day of December 2007 (this “Agreement”),
      between XA, INC., a Nevada corporation (the “Company”),
      and
      Vision Opportunity Master Fund, Ltd. (the “Purchaser”).

     

    W
      I T N E S S E T
      H:

     

    WHEREAS,
      the Company has
      previously entered into Securities Purchase Agreements on August 8, 2006,
      September 26, 2006 and October 23, 2006 (the “Prior
      Closing”
and the “Prior
      Purchase
      Agreements”), whereby it sold an aggregate of $2,700,000 in 11%
      Senior Secured Convertible Promissory Notes (the “Prior
      Notes”)
      and 392,500 warrants to purchase shares of its common stock at an exercise
      price
      of $1.10 per share and 433,333 warrants to purchase shares of its common stock
      at an exercise price of $0.30 per share (collectively the “Prior
      Warrants”), to six entities (including the Purchaser) and two
      individuals (the “Prior
      Purchasers”) which Prior Notes were secured by Security Agreements
      (the “Prior
      Security
      Agreements”);

     

    WHEREAS,
      the Company has
      previously entered into Securities Purchase Agreements on June 11, 2007, June
      22, 2007, and June 29, 2007 (the “Follow
      On
      Closing” and the “Follow
      On Purchase
      Agreements”), whereby it sold an aggregate of $450,000 in 11%
      Senior Secured Convertible Promissory Notes (the “Follow
      On
      Notes”) and 450,000 warrants to purchase shares of its common
      stock at an exercise price of $0.30 per share (the “Follow
      OnWarrants”),
      to
      six entities (including the Purchaser) and two individuals (the “Follow
      On
      Purchasers”) which Follow On Notes were secured by Security
      Agreements (the “Follow
      OnSecurity
      Agreements”).  The shares of common stock which the
      Prior Notes and the Follow On Notes were convertible into and the shares of
      common stock which the Prior Warrants and Follow On Warrants were convertible
      into and an aggregate of 1,000,000 additional warrants previously issued
      exercisable at $0.30 per share (collectively the “Prior
      Underlying
      Shares”), were granted registration rights pursuant to
      Registration Rights Agreements (the “Prior
      Registration
      Agreements”);

     

    WHEREAS,
      the Company desires
      to issue to the Purchaser, and the Purchaser desires to purchase from the
      Company, the additional Securities (as such term is defined below) as set forth
      below (the “Offering”);
      and

     

    WHEREAS,
      certain capitalized
      terms used in this Agreement are defined in Section 9.1
      hereof;

     

    NOW,
      THEREFORE, in
      consideration of the promises and mutual covenants and agreements hereinafter
      contained, and for good and valuable consideration the receipt and adequacy
      of
      which are hereby acknowledged, the parties hereto hereby agree as
      follows:

     

    
      
        
        

      

      
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    1.      Sale
      and Purchase of
      Securities.

     

    1.1                      Sale
      and Purchase of
      Securities.  Subject to the terms and conditions of this
      Agreement, on the Closing Date (as defined in Section 3.1 hereof),
      the Company shall issue, sell and deliver to the Purchaser, and the Purchaser
      shall purchase from the Company for the Purchase
      Price (as defined in Section 2.1 hereof)
      (i) 11% Senior Subordinated Secured Convertible Promissory Notes in the
      aggregate principal amount of $200,000 on or about the date of this Agreement,
      which are part of a sale of an aggregate of up to $600,000 in 11% Senior
      Subordinated Convertible Promissory Notes by the Company (collectively the
      “Notes”)
      and
      warrants to purchase Two Hundred Thousand
      (200,000) shares (subject to adjustment as described therein), of the Company’s
      common stock, par value $0.001 per share (the “Common
      Stock”)
      at an exercise price of $0.30 per share (subject to adjustment as described
      therein), of the Company’s Common Stock (each a “Warrant”
and
      collectively the “Warrants”).
      The Notes and Warrants shall hereinafter sometimes be collectively referred
      to
      as the “Securities.”
      The names, addresses and principal amount of Notes purchased and Warrants
      received by the Purchaser shall be set forth on Schedule 1.1
      hereto.

     

    2.      Purchase
      Price.

     

    2.1                      Purchase
      Price.  (i)  The aggregate purchase price of the
      Securities to be purchased pursuant to Section 1.1 shall be
      $200,000 (the “Purchase
      Price”).

     

    2.2                      Payment
      of the Purchase
      Price.  At the Closing (as defined in Section 3.1 hereof),
      the Purchaser shall pay the Purchase Price by wire transfer of immediately
      available funds or by such other method as may be reasonably acceptable to
      the
      Company and the Purchaser, to such account of the Company as shall have been
      designated in advance to the Purchaser by the Company.

     

    3.      Closing.

     

    3.1                      Closing
      Date.  The closing of the sale and purchase of the Securities
      (the “Closing”)
      shall take place on December 21, 2007, or at such other time, date or place
      as
      the parties hereto may mutually agree; provided, that all
      conditions to the Closing set forth in this Agreement have been satisfied or
      waived by such date.  The date on which the Closing is held is
      referred to in this Agreement as the “Closing
      Date.”
At the Closing (i) the Company shall deliver, or cause to be
      delivered, the
      Notes, each executed by the Company and (ii) the documents referred to in Section 8
      hereof.

     

    3.2                     
      Mastodon
      Warrants. The Company shall issue Mastodon Ventures, Inc. an aggregate of
      350,000 warrants to purchase shares of the Company’s common stock at an exercise
      price of $0.30 per share, in connection with the Closing (the “Mastodon
      Warrants”).  The Company has previously issued 1,000,000
      warrants to Mastodon Ventures, Inc., which warrants have an exercise price
      of
      $0.30 per share.  Additionally, the Company has learned that a portion
      of such Warrants have been assigned to various parties by Mastodon.

    


    
      
        
        

      

      
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    3.3           PriorWarrants
      and Follow On
      Warrants Amendments.  The expiration date of the Prior Warrants
      and the Follow On Warrants will automatically be amended to the date five years
      from the date of the Closing Date.

    


    3.4           Management
      Shares and
      Warrants.  The Company, and the Company’s Chief Executive
      Officer, Joseph Wagner (“Wagner”),
      agree that a condition to the Closing is that
      Wagner put all of the shares of the Company’s common stock, and all warrants to
      purchase shares of the Company’s common stock which he beneficially owns (the
“Wagner
      Securities”) into a lock-bock, and that Wagner shall not be able
      to sell any of the Wagner Securities until the earlier of (a) the date the
      Notes
      are repaid in full; (b) the date all of the Underlying Shares have been
      registered with the Securities and Exchange Commission; or (c) the date such
      Underlying Shares can be sold without restriction pursuant to Rule 144, or
      otherwise.   The Company will inform the Company’s transfer agent
      by letter, of the placement of the Wagner Securities in the lock-box and the
      restrictions thereon after the parties entry into this Agreement.

    


    3.5           Amendment
      to Follow On
      Warrants.  The Company and the Purchaser agree that Section 16
      of the Follow On Warrants shall be amended to provide for the Purchaser to
      be
      able to provide the Company five (5) days prior written notice of their intent
      to hold more than 9.9% of the Company’s common stock in connection with such
      Waiver Notice, as defined in the Follow On Warrants.

    


    4.      Representations
      and Warranties of the
      Company. The Company hereby represents, covenants and warrants as of the
      date hereof and as of the Closing Date to the Purchaser, acknowledging that
      the
      Purchaser is relying upon the accuracy and completeness of the representations
      and warranties set forth herein to, among other things, ensure that registration
      under Section 5 of the Securities Act is not required in connection with
the sale of the Securities hereby, as follows:

     

    4.1           
      Organization and
      Good
      Standing; Capitalization.

     

    (a)           The
      Company (and each Subsidiary) is duly organized, validly existing and in good
      standing under the laws of the state of Nevada and has the corporate power
      and
      authority to own, lease and operate its properties and assets and to carry
      on
      its business as now conducted and as it is proposed to be
      conducted.  The Company is in good standing under the laws of each
      jurisdiction in which the conduct of its business or the ownership of its
      properties or assets requires such qualification or authorization.

     

    (b)           All
      the outstanding shares of capital stock of the Company have been duly
      authorized, and are validly issued, fully paid and
      non-assessable.  Except as disclosed on Schedule 4.1(b) (i)
      there is no option, warrant, call, right, commitment or other agreement of
      any
      character to which the Company is a party, (ii) there are no securities of
      the
      Company outstanding which upon conversion or exchange, and (iii) there are
      no
      share appreciation rights, or other similar rights based on securities of the
      Company which, in the case of clause (i), (ii) or (iii), would require the
      issuance, sale or transfer of any additional shares of capital stock or other
      equity securities of the Company or other securities convertible into,
      exchangeable for or evidencing the right to subscribe for or purchase share
      capital or other equity securities of the Company.  Other than as
      contemplated by this Agreement or Transaction Documents (as defined in Section 4.2), the
      Company is not a party to, nor is it aware of, any voting trust or other voting,
      stockholders or similar agreement with respect to any of the securities of
      the
      Company or of any agreement relating to the issuance, sale, redemption, transfer
      or other disposition of the shares of capital stock on other securities of
      the
      Company.

     


    
      
        
        

      

      
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    4.2                      Authorization
      of Agreement;
      Enforceability. The Company has all requisite corporate power and
      authority to execute and deliver this Agreement and each other agreement,
      document, instrument and certificate, including, but not limited to, Waiver
      Agreements, the Bank Consent, the Notes, Warrants, Registration Rights Agreement
      and Security Agreement, to be executed by the Company in connection with the
      consummation of the transactions contemplated by this Agreement (collectively,
      the “Transaction
      Documents”), and to perform fully its obligations hereunder and
      thereunder.  The execution, delivery and performance by the Company of
      this Agreement and the Transaction Documents have been duly authorized by all
      necessary corporate action on the part of the Company and its
      stockholders.  This Agreement and each of the Transaction Documents
      have been duly and validly executed and delivered by the Company and, assuming
      the due authorization, execution and delivery thereof by the Purchaser, this
      Agreement and each of the Transaction Documents constitutes the legal, valid
      and
      binding obligations of the Company, enforceable against the Company in
      accordance with its respective terms, subject to applicable bankruptcy,
      insolvency, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally and subject, as to enforceability, to general
      principles of equity (regardless of whether enforcement is sought in a
      proceeding at law or in equity).

     

    4.3           No
      Conflicts. The
      execution, delivery and performance of the Transaction Documents by the Company
      and the consummation by the Company of the transactions contemplated thereby,
      do
      not and will not (i) conflict with or violate any provision of the
      Company’s and/or any Subsidiary’s Articles of Incorporation or by-laws and any
      and all amendments thereto (collectively, the “Internal
      Documents”), (ii) conflict with, or constitute a default (or
      an event that with notice or lapse of time or both would become a default)
      under, or give to others any rights of termination, amendment, acceleration
      or
      cancellation (with or without notice, lapse of time or both) of, any agreement,
      credit facility, debt or other instrument (evidencing a Company or Subsidiary
      debt or otherwise), or other understanding to which the Company or any
      Subsidiary is a party or by which any property or asset of the Company or any
      Subsidiary is bound or affected, or (iii) result in a violation of any law,
      rule, regulation, order, judgment, injunction, decree or other restriction
      of
      any court or governmental authority to which the Company or a Subsidiary is
      subject (including federal and state securities laws and regulations), or by
      which any property or asset of the Company or a Subsidiary is bound or
      affected.

     

    4.4                      Subsidiaries,
      Joint
      Ventures, Partnerships, Etc.

     

    (a)           As
      of the Closing (i) The Experiential Agency, Inc., (ii) XA Scenes, Inc., (iii)
      XA
      Interactive, Inc., and (iv) Fiori XA, Inc. (collectively the “Subsidiaries”)
      are the only subsidiaries of the Company.  Each Subsidiary is wholly
      owned by the Company, is duly organized, validly existing and in good standing
      under the laws of the jurisdiction of its incorporation with corporate power
      and
      corporate authority under such laws to own, lease and operate its properties
      and
      conduct its business as currently conducted; and is in good standing (if
      applicable) in each other jurisdiction in which it owns or leases property
      of a
      nature, or transacts business of a type, that would make such qualification
      necessary other than such qualifications which the failure to have would not
      reasonably be expected to have a Material Adverse Effect.

     


    
      
        
        

      

      
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    (b)           Neither
      the Company nor its Subsidiaries is a party to any joint venture, partnership
      or
      similar arrangement or agreement.

     

    4.5                      Consents
      of Third
      Parties.  None of the execution and delivery by the Company of
      this Agreement and the Transaction Documents, the Bank Consent, the consummation
      of the transactions contemplated hereby or thereby, or compliance by the Company
      with any of the provisions hereof or thereof will (a) conflict with, or result
      in the breach of, any provision of the Certificate of Incorporation or Bylaws
      of
      the Company (or any Subsidiary), (b) conflict with, violate, result in the
      breach or termination of, or constitute a default or give rise to any right
      of
      termination or acceleration or right to increase the obligations or otherwise
      modify the terms thereof under any Permit or Order to which the Company (or
      any
      Subsidiary) is a party or any Contract to which the Company or its Subsidiaries
      is bound or by which the Company or any of its properties or assets is bound,
      other than such conflicts, violations, breaches, defaults, termination or
      accelerations that would not reasonably be expected to have a Material Adverse
      Effect, (c) constitute a violation of any Law applicable to the Company (or
      any
      Subsidiary) or (d) result in the creation of any Lien upon the properties or
      assets of the Company (or any Subsidiary).  No consent, waiver,
      approval, Order, Permit or authorization of, or declaration or filing with,
      or
      notification to, any Person or Governmental Body is required on the part of
      the
      Company and/or its Subsidiaries in connection with the execution and delivery
      of
      this Agreement, and/or the Transaction Documents, or the compliance by the
      Company with any of the provisions hereof or thereof.

     

    4.6                      Authorization
      of
      Securities.

     

    (a)           On
      the Closing Date, the issuance, sale, and delivery of the Securities to be
      purchased pursuant to Section 1.1 will have
      been duly authorized by all requisite action of the Company, and, when issued,
      sold, delivered and paid for in accordance with this Agreement, the Securities
      will be validly issued and outstanding, with no personal liability attaching
      to
      the ownership thereof.

     

    (b)           On
      the Closing Date, the issuance and delivery of the shares of Common Stock to
      be
      delivered upon conversion of the Notes (the “Conversion
      Shares”) and upon exercise of the Warrants (the “Warrant
      Shares”) in accordance with the terms thereof (collectively, the
      Conversion Shares and the Warrants Shares, the “Underlying
      Shares”) will have been duly authorized by all requisite action of
      the Company and, when issued and delivered in accordance with the terms of
      the
      Securities, the Underlying Shares will be validly issued and outstanding, fully
      paid and non-assessable, with no personal liability attaching to the ownership
      thereof, and not subject to preemptive or any other similar rights of the
      stockholders of the Company or others.

     

    4.7           Rule
      144 Holding Period.  The Company agrees and confirms that the
      Purchaser’s holding period for the purposes of Rule 144 relates back to October
      23, 2006 in connection with the Prior Notes purchased by the Purchaser and
      June
      29, 2007 in connection with the Follow On Notes purchased by the
      Purchaser.  The Company also agrees and confirms, that in the event of
      a cashless exercise of the Prior Warrants issued to the Purchaser in connection
      with Purchaser’s subscription for the Prior Notes, the applicable Rule 144
      holding period will relate back to October 23, 2006, and in the event of a
      cashless exercise of the Follow On Warrants issued to the Purchaser in
      connection with Purchaser’s subscription for the Follow On Notes, the applicable
      Rule 144 holding period will relate back to June 29,
      2007.


    
      
        
        

      

      
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    4.8                      Capitalization
      and Increase in Authorized Shares.

     

    (a)
Capitalization.
Schedule
      4.8 hereto
      sets forth in detail all outstanding securities of the Company (including the
      terms, the holders and the amounts thereof). Other than as disclosed in Schedule 4.8,
      (i)  there are no outstanding securities of the Company or any of its
      Subsidiaries which contain any preemptive, redemption or similar provisions,
      nor
      is any holder of securities of the Company or any Subsidiary entitled to
      preemptive or similar rights arising out of any agreement or understanding
      with
      the Company or any Subsidiary by virtue of any of the Transaction Documents,
      and
      there are no contracts, commitments, understandings or arrangements by which
      the
      Company or any of its Subsidiaries is or may become bound to redeem a security
      of the Company or any of its Subsidiaries; (ii) the Company does not have any
      stock appreciation rights or "phantom stock" plans or agreements or any similar
      plan or agreement; and (iii) there are no outstanding options, warrants, script
      rights to subscribe to, calls or commitments of any character whatsoever
      relating to, or securities, except as a result of the purchase and sale of
      the
      Transaction Securities, or rights or obligations convertible into or
      exchangeable for, or giving any Person any right to subscribe for or acquire,
      any shares of Common Stock, or contracts, commitments, understandings, or
      arrangements by which the Company or any Subsidiary is or may become bound
      to
      issue additional shares of Common Stock, or secur­ities or rights
      convertible or exchangeable into shares of Common Stock.

     

    (b)
Increase
      in Authorized
      Shares.  The Company agrees to use its best efforts to file a
      Form 14a Proxy Statement with the Securities and Exchange Commission on or
      prior
      to February 15, 2008, to request shareholder approval to increase the Company’s
      authorized shares of Common Stock, $0.001 par value per share to 50,000,000
      shares, and to re-authorize the Company’s preferred stock, $0.001 par value per
      share.

    


    4.9                      SEC
      Reports; Financial
      Statements. The Company has filed all reports required to be filed by it
      under the Securities Act and the Exchange Act, including pursuant to
      Section 13(a) or Section 15(d) of the Exchange Act, for the
      one (1) year preceding the date hereof (or such shorter period as the Company
      was required by law to file such material) (the foregoing materials, including
      the exhibits thereto, being collectively referred to herein as the “SEC
      Reports”).  As of their respective dates, the SEC
      Reports complied in all material respects with the requirements of the
      Securities Act and the Exchange Act and the rules and regulations of the
      Commission promulgated thereunder, as applicable, and none of the SEC Reports,
      when filed, contained any untrue statement of a material fact or omitted to
      state a material fact required to be stated therein or necessary in order to
      make the statements therein, in light of the circumstances under which they
      were
      made, not misleading. All material agreements to which the Company is a party
      or
      to which the property or assets of the Company are subject have been filed
      as
      exhibits to the SEC Reports to the extent required.  The financial
      statements of the Company
      included in the SEC Reports comply in all material respects with applicable
      accounting requirements and the rules and regulations of the Commission with
      respect thereto as in effect at the time of filing. Such financial statements
      have been prepared in accordance with generally accepted accounting principles
      applied on a consistent basis during the periods involved (“GAAP”),
      except
      as may be otherwise specified in such financial statements or the notes thereto
      and except that unaudited financial statements may not contain all footnotes
      required by GAAP, and fairly present in all material respects the financial
      position of the Company and its consolidated subsidiaries as of and for the
      dates thereof and the results of operations and cash flows for the periods
      then
      ended, subject, in the case of unaudited statements, to normal, immaterial,
      year-end audit adjustments. Additionally, since the adoption of the
      Sarbanes-Oxley Act of 2002 (the “New
      Act”) and
      to the extent that the Company is subject to the New Act, the Company has
      complied in all material respects with the laws, rules and regulation under
      the
      New Act.

     


    
      
        
        

      

      
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    4.10           Material
      Changes.
      Since December 31, 2006,  other than as disclosed in the SEC Reports,
      (i) there has been no event, occurrence or development that has had or that
      could reasonably be expected to result in a Material Adverse Effect,
      (ii) the Company has not incurred any material liabilities (contingent or
      otherwise) other than (A) trade payables and accrued expenses incurred in the
      ordinary course of business consistent with past practice and (B) liabilities
      not required to be reflected in the Company's financial statements pursuant
      to
      GAAP or required to be disclosed in filings made with the Commission,
      (iii) the Company has not altered its method of accounting or the identity
      of its auditors, (iv) the Company has not declared or made payment or
      distribution of any dividend or distribution of cash or other property to its
      holders of Common Stock or purchased, redeemed or made any agreements to
      purchase or redeem any shares of its capital stock and (v) the Company has
      not issued any equity securities to any officer, director or Affiliate, except
      pursuant to existing Company stock option plans.

     

    4.11           No
      Undisclosed
      Liabilities.  Other than as disclosed in the SEC Reports,
      neither the Company nor its Subsidiaries has any liabilities (whether accrued,
      absolute, contingent or otherwise, and whether due or to become due or asserted
      or unasserted), except (a) liabilities provided for in the Financial Statements
      (other than liabilities which, in accordance with GAAP, need not be disclosed),
      (b) liabilities disclosed on Schedule 4.11 hereto
      and (c) liabilities incurred in the ordinary course of business which do not
      materially exceed historic levels.

     

    4.12           Absence
      of Certain
      Developments.   In the ordinary course of business or in
      the context of the Transactions contemplated in this Agreement and the
      Transaction Documents:

     

    (a)           there
      has not been any Material Adverse Change nor has any event occurred which could
      result in any Material Adverse Change;

     

    (b)           there
      has not been any declaration, setting a record date, setting aside or
      authorizing the payment of, any dividend or other distribution in respect of
      any
      shares of capital stock
      of
      the Company or its Subsidiaries or any repurchase, redemption or other
      acquisition by the Company or its Subsidiaries, of any of the outstanding shares
      of capital stock or other securities of, or other ownership interest in, the
      Company or its Subsidiaries;

     


    
      
        
        

      

      
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    (c)           there
      has not been any transfer, issue, sale or other disposition by the Company
      of
      any shares of capital stock or other securities of the Company or its
      Subsidiaries or any grant of options, warrants, calls or other rights to
      purchase or otherwise acquire shares of such capital stock or such other
      securities;

     

    (d)           neither
      the Company nor its Subsidiaries has (i) awarded or paid any bonuses to
      employees or representatives of the Company, (ii) entered into any employment,
      deferred compensation, severance or similar agreements (nor amended any such
      agreement), other than in the ordinary course of business;

     

    (e)           neither
      the Company nor its Subsidiaries has made any loans, advances (other than
      advances to officers and employees of the Company or its Subsidiaries which
      advances are made in the ordinary course of business), or capital contributions
      to, or investments in, any Person or paid any fees or expenses to any Affiliate
      of the Company other than its Subsidiaries;

     

    (f)           neither
      the Company nor its Subsidiaries has transferred or granted any rights under
      any
      Contracts or licenses, used by the Company in its business;

     

    (g)           there
      has not been any damage, destruction or loss, whether or not covered by
      insurance, with respect to the property or assets of the Company or its
      Subsidiaries having a replacement cost of more than $10,000 for any single
      loss
      or $20,000 for all such losses;

     

    (h)           neither
      the Company nor its Subsidiaries has mortgaged, pledged or subjected to any
      Lien
      any of its assets, or acquired any assets for a purchase price in excess of
      $10,000 in the aggregate or sold, assigned, transferred, conveyed, leased or
      otherwise disposed of any assets of the Company or its Subsidiaries for a sale
      price in excess of $10,000 in the aggregate except for assets acquired or sold,
      assigned, transferred, conveyed, leased or otherwise disposed of in the ordinary
      course of business;

     

    (i)           neither
      the Company nor its Subsidiaries has canceled or compromised any debt or claim,
      or amended, canceled, terminated, relinquished, waived or released any Contract
      or right, except in the ordinary course of business consistent with past
      practice and which, individually or in the aggregate, would not be material
      to
      the Company or its Subsidiaries;

     

    (j)           neither
      the Company nor its Subsidiaries has made any binding commitment to make any
      capital expenditures or capital additions or betterments in excess of $20,000
      individually or $50,000 in the aggregate;

     

    (k)           neither
      the Company nor its Subsidiaries has incurred any debts, obligations or
      liabilities, whether due or to become due, except current liabilities incurred
      in the ordinary
      course of business, none of which current liabilities (individually or in the
      aggregate) could result in a Material Adverse Change;

     


    
      
        
        

      

      
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    (l)           
      neither the Company nor its Subsidiaries has entered into any transaction other
      than in the ordinary course of business except for (in the case of the Company)
      this Agreement;

     

    (m)          neither
      the Company nor its Subsidiaries has encountered any labor difficulties or
      labor
      union organizing activities;

     

    (n)           neither
      the Company nor its Subsidiaries has made any change in the accounting
      principles, methods or practices followed by it or depreciation or amortization
      policies or rates theretofore adopted;

     

    (o)           neither
      the Company nor its Subsidiaries has disclosed to any Person any material trade
      secrets except for disclosures made to Persons subject to valid and enforceable
      confidentiality agreements;

     

    (p)           neither
      the Company nor its Subsidiaries has suffered or experienced any change in
      the
      relationship or course of dealings between the Company and/or its Subsidiaries
      and any of their suppliers or customers which supply goods or services to the
      Company or its Subsidiaries or purchase goods or services from the Company
      and
      or its Subsidiaries; and

     

    (q)           neither
      the Company nor its Subsidiaries has made any payment to, or received any
      payment from, or made or received any investment in, or entered into any
      transaction or series of related transactions (including without limitation,
      the
      purchase, sale, exchange or lease of assets, property or services, or the making
      of a loan or guarantee) with any Affiliate in each case, in excess of $10,000
      or
      its equivalent (other than any transactions between or among the Company and
      its
      Subsidiaries) (each, an “Affiliate
      Transaction”).

     

    4.13           Taxes.  The
      Company and its Subsidiaries have filed all Tax returns (including statements
      of
      estimated Taxes owed) and reports required to be filed within the applicable
      periods (subject to extensions) for such filings and have paid all Taxes
      required to be paid, and has established adequate reserves (net of estimated
      Tax
      payments already made) for the payment of all Taxes payable in respect of the
      period subsequent to the last periods covered by such returns.  No
      deficiencies for any Tax are currently assessed against the Company or any
      Subsidiary.  There is no Tax Lien, whether imposed by any federal,
      state or local taxing authority, outstanding against the assets, properties
      or
      business of the Company or its Subsidiaries other than Liens for Taxes which
      are
      not yet due.  Neither the Company nor its Subsidiaries has executed
      any waiver of the statute of limitations on the assessment or collection of
      any
      Tax or governmental charge.  The Company and its Subsidiaries have
      properly charged, collected and paid all applicable stamp, sales, use and other
      similar Taxes on or before the Closing Date.

     


    
      
        
        

      

      
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    4.14           Real
      Property.  The Company currently has (i) leased certain
      locations for office space , and (ii) owns real property, all of which leases
      and real property are listed (including the terms of such leases) on Schedule
      4.14.

     

    4.15           Tangible
      Personal Property;
      Assets.  All material items of personal property and assets
      owned or leased by the Company and its Subsidiaries are in good operating
      condition, normal wear and tear excepted.

     

    4.16           Intangible
      Property.  The Company and its Subsidiaries own, or possess
      adequate rights or licenses to use all trademarks, trade names, service marks,
      service mark registrations, service names, patents, patent rights, copyrights,
      inventions, licenses, approvals, governmental authorizations, trade secrets
      and
      rights necessary to conduct their respective businesses as now conducted, the
      lack of which could reasonably be expected to have a Material Adverse
      Effect.  The Company and its Subsidiaries do not have any knowledge of
      any infringement by the Company or its Subsidiaries of trademarks, trade name
      rights, patents, patent rights, copyrights, inventions, licenses, service names,
      service marks, service mark registrations, trade secrets or other similar rights
      of others, or of any such development of similar or identical trade secrets
      or
      technical information by others and no claim, action or proceeding has been
      made
      or brought against, or to the Company's knowledge, has been threatened against,
      the Company or its Subsidiaries regarding trademarks, trade name rights,
      patents, patent rights, inventions, copyrights, licenses, service names, service
      marks, service mark registrations, trade secrets or other infringement, except
      where such infringement, claim, action or proceeding would not reasonably be
      expected to have either individually or in the aggregate a Material Adverse
      Effect. None of the Company’s employees, officers, or consultants are obligated
      under any contract (including licenses, covenants, or commitments of any nature)
      or other agreement, or subject to any judgment, decree, or order of any court
      or
      administrative agency, that would interfere with the use of such employee’s,
      officer’s, or consultant’s commercially reasonable efforts to promote the
      interests of the Company or that would conflict with the Company’s business as
      conducted.  Neither the execution nor delivery of the Transaction
      Documents, nor the carrying on of the Company’s business by the employees of the
      Company, nor the conduct of the Company’s business, will, to the Company’s
      knowledge, conflict with or result in a breach of the terms, conditions, or
      provisions of, or constitute a default under, any contract, covenant, or
      instrument under which any of such employees, officers or consultants are now
      obligated.

     

    4.17           Material
      Contracts.

     

    Other
      than as set forth  on Schedule 4.17, or
      otherwise disclosed in the Company’s Securities and Exchange Commission filings
      (a) neither the Company nor its Subsidiaries nor any of their respective
      properties or assets is a party to or bound by any (i) Contract not made in
      the
      ordinary course of business, or involving a commitment or payment by the Company
      or any Subsidiary in excess of $10,000 or, in the Company’s belief, otherwise
      material to the business of the Company or its Subsidiaries, (ii) Contract
      among
      members or granting a right of first refusal or for a partnership or a joint
      venture or for the acquisition, sale or lease of any assets or share capital
      of
      the Company or any other Person or involving a sharing of profits,
      (iii) mortgage, pledge, conditional sales contract, security agreement,
      factoring agreement
      or other similar Contract with respect to any real or tangible personal property
      of the Company or its Subsidiaries, (iv) loan agreement, credit agreement,
      promissory note, guarantee, subordination agreement, letter of credit or any
      other similar type of Contract, (v) Contract with any Governmental Body outside
      the ordinary course of business, (vi) Contract with respect to the discharge,
      storage or removal of hazardous materials or (vii) binding commitment or
      agreement to enter into any of the foregoing.

     


    
      
        
        

      

      
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    (b)           (i)           Each
      of the Contracts listed on Schedule 4.17 are
      valid and enforceable against the Company or its Subsidiaries in accordance
      with
      their terms, subject to applicable bankruptcy, insolvency, reorganization,
      moratorium and similar laws affecting creditors’ rights and remedies generally
      and subject, as to enforceability, to general principles of equity (regardless
      of whether enforcement is sought in a proceeding at law or in equity), and
      there
      is no default under any Contract listed on Schedule 4.17 by
      the Company or any of its Subsidiaries or, to the knowledge of the Company,
      by
      any other party thereto, which is likely to have a Material Adverse Effect,
      and
      no event has occurred that with the lapse of time or the giving of notice or
      both would constitute a default by the Company thereunder which is likely to
      have a Material Adverse Effect.

     

    (ii)           No
      previous or current party to any Contract has given written notice to the
      Company or any Subsidiary of, or made a claim, verbal or written, with respect
      to any breach or default thereunder and the Company has no knowledge of any
      notice of or claim with respect to any such breach or default other than such
      notices or claims with respect to any such breaches or defaults that would
      not,
      either individually or in the aggregate, be reasonably expected to have a
      Material Adverse Effect.

     

    (c)           With
      respect to the Contracts listed on Schedule 4.17 that
      were assigned to the Company or any Subsidiary by a third party, all necessary
      consents to such assignment have been obtained other than such contents which
      the failure to obtain would not be reasonably expected to have a Material
      Adverse Effect.

     

    4.18           Employee
      Benefits.  Except as set forth on Schedule
      4.18,
      neither the Company nor any of its Subsidiaries has in effect any employment
      agreements, consulting agreements, deferred compensation, pension or retirement
      agreements or arrangements, bonus, incentive or profit-sharing plans or
      arrangements, or labor or collective bargaining agreements, written or
      oral.  The Company and its Subsidiaries are in compliance in all
      material respects with all applicable Laws relating to labor, employment, fair
      employment practices, terms and conditions of employment, and wages and
      hours.

     

    4.19           Employees.

     

    (a)           No
      key executive Employee, group of Employees nor independent contractors of the
      Company or its Subsidiaries has any plans to terminate his or her employment
      or
      relationship as an Employee or independent contractor with the Company or its
      Subsidiaries.

     

    (b)           To
      the best of the Company’s knowledge, no key executive Employee or any other
      Employee of the Company or its Subsidiaries is a party to or is otherwise bound
      by any agreement
      or arrangement (including, without limitation, confidentiality agreements,
      non-competition agreements, licenses, covenants, or commitments of any nature),
      or subject to any judgment, decree, or Order of any court or Governmental Body,
      (i) that would conflict with such employee’s obligation diligently to promote
      and further the interest of the Company or its Subsidiaries or (ii) that would
      conflict with the Company’s (or its Subsidiaries’) business as now conducted or
      as proposed to be conducted.

     

    (c)           Schedule
      4.19(c) sets
      forth a list of each of the key executive Employees of the Company who have
      entered into an employment and/or confidentiality agreement with the
      Company.

     

    
      
        
        

      

      
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    4.20           Litigation.  Other
      than is set forth on Schedule 4.20, there
      is no action, suit, inquiry, notice of violation, proceeding or investigation
      pending or, to the knowledge of the Company, currently threatened against or
      affecting the Company, any Subsidiary or any of their respective properties
      before or by any court, arbitrator, governmental or administrative agency and/or
      regulatory authority (federal, state, county, local or foreign), (collectively,
      an “Action”)
      which
      (i) does and/or could adversely affects or challenges the legality, validity
      or
      enforceability of any of the Transaction Documents and/or the Securities or
      to
      consummate the transactions contemplated hereby or thereby or (ii) could,
      if there were an unfavorable decision, have or reasonably be expected to result
      in, either individually or in the aggregate, a Material Adverse
      Effect.  The Commission has not issued any stop order or other order
      suspending the effectiveness of any registration statement filed by the Company
      or any Subsidiary under the Exchange Act or the Securities Act. The foregoing
      includes, without limitation, actions, pending or threatened (or any basis
      therefor known to the Company), involving the prior employment of any of the
      Company’s employees, their use in connection with the Company’s business of any
      information or techniques allegedly proprietary to any of their former
      employers, or their obligations under any agreements with prior
      employers.  The Company is not a party or subject to the provisions of
      any order, writ, injunction, judgment, or decree of any court or government
      agency or instrumentality.

     

    4.21           Compliance
      with Laws;
      Permits.  Neither the Company nor any Subsidiary (i) is in
      default under or in violation of (and no event has occurred that has not been
      waived that, with notice or lapse of time or both, would result in a default
      by
      the Company or any Subsidiary under), nor has the Company or any Subsidiary
      received notice of a claim that it is in default under or that it is in
      violation of, any indenture, mortgage, decree, lease, license, loan or credit
      agreement or any other agreement or instrument to which it is a party or by
      which it or any of its properties is bound (whether or not such default or
      violation has been waived), (ii) is in violation of any order of any court,
      arbitrator or governmental body, or (iii) is or has been in violation of
      any statute, rule or regulation of any governmental authority, including without
      limitation all foreign, federal, state and local laws applicable to its
      business, except in the case of clauses (i), (ii) and (iii) as would
      not result in a Material Adverse Effect. Neither the Company nor any of the
      Subsidiaries has received any written notice of any violation of or
      noncompliance with, any federal, state, local or foreign laws, ordinances,
      regulations and orders (including, without limitation, those relating to
      environmental protection, occupational safety and health, federal securities
      laws, equal employment opportunity, consumer protection, credit reporting,
      “truth-in-lending”, and warranties and trade practices) applicable to its
      business or to the business of any Subsidiary, the violation of, or
      noncompliance with, which would have a materially adverse effect on either
      the
      Company’s business or operations, or that of any Subsidiary, and the Company
      knows of no facts or set of circumstances which would give rise to such a
      notice. The execution, delivery, and performance of the Transaction Documents
      and the consummation of the transactions contemplated thereby will not result
      in
      any such violation or be in conflict with or constitute, with or without the
      passage of time and giving of notice, either a default under any such provision,
      instrument, judgment, order, writ, decree or contract, or an event which results
      in the creation of any lien, charge, or encumbrance upon any assets of the
      Company or the suspension, revocation, impairment, forfeiture, or nonrenewal
      of
      any material permit, license, authorization, or approval applicable to the
      Company, its business or operations, or any of its assets or properties, except
      as would not reasonably be expected to have a Material Adverse
      Effect.

     

    4.22           Environmental
      and Safety
      Laws.  Neither the Company nor its Subsidiaries are in
      violation of any applicable Laws relating to the environment or occupational
      health and safety where the failure to so comply could have a Material Adverse
      Effect and no material expenditures are or will be required in order to comply
      with any such existing Laws.

     

    4.23           Investment
      Company
      Act.  The Company is not, nor is it directly or indirectly
      controlled by or acting on behalf of, any Person that is an investment company
      within the meaning of the Investment Company Act of 1940, as
      amended.

     

    4.24           Financial
      Advisors.  Except for Laidlaw, 
      no agent, broker, investment banker, finder, financial advisor or other Person
      is or will be entitled to any broker’s or finder’s fee or any other commission
      or similar fee from the Company, directly or indirectly, in connection with
      the
      transactions contemplated by this Agreement or any Transaction Document and
      no
      Person is entitled to any fee or commission or like payment from the Company
      in
      respect thereof based in any way on agreements, arrangements or understandings
      made by or on behalf of the Company.

    


    
      
        
        

      

      
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    4.25           Condition
      of
      Properties.  All facilities, machinery, equipment, fixtures,
      vehicles and other properties owned, leased or used by the Company and its
      Subsidiaries are in good operating condition and repair, are reasonably fit
      and
      usable for the purposes for which they are being used, are adequate and
      sufficient for the Company and its Subsidiaries respective businesses and
      conform in all material respects with all applicable Laws.

     

    4.26           Pending
      Changes.  The Company has no knowledge of any development which
      might reasonably be expected to result in a material adverse affect on the
      operations or financial condition of the Company or its
      Subsidiaries.

     

    4.27           Securities
      Laws.  The Company has complied in all material respects with
      all applicable U.S. federal and state securities laws in connection with (i)
      all
      offers, issuances and sales of its securities prior to the date hereof and
      (ii)
      the offer, issuance and sale of the Securities.  All sales and
      issuances of currently outstanding securities by the Company have been to
accredited
      investors within the meaning of Rule 501 of Regulation D under the Securities
      Act.  Prior to the Closing, neither the Company nor anyone acting on
      its behalf has sold, offered to sell or solicited offers to buy the Securities
      or similar securities to, or solicited offers with respect thereto from, or
      entered into any preliminary conversations or negotiations relating thereto
      with, any Person, so as to bring the issuance and sale of the Securities under
      the registration provisions of the Securities Act, and applicable state
      securities laws.  Neither the Company nor any Person acting on its
      behalf has offered the Securities to any Person by means of general or public
      solicitation or general or public advertising, such as by newspaper or magazine
      advertisements, by broadcast media, or at any seminar or meeting whose attendees
      were solicited by such means.

     

    4.28           Registration
      Rights.  Except for any rights granted under the Transaction
      Documents and the Prior Registration Agreements, no Person has demand or other
      rights to cause the Company to file any registration statement under the
      Securities Act relating to any securities of the Company or any right to
      participate in any such registration statement.

     

    4.29           Disclosure;
      Survival.  There is no fact which has not been disclosed to the
      Purchaser of which the Company has knowledge and which has had or could
      reasonably be anticipated to result in a Material Adverse Change.  All
      representations and warranties set forth in this Agreement or in any of the
      Transaction Documents or in any writing or certificate delivered in connection
      with this Agreement shall survive the execution and delivery of this Agreement
      and the consummation of the transactions contemplated hereby for a period of
      two
      (2) years (except where expressly stated otherwise) (the “Survival
      Period”) and shall not be affected by any examination made for or
      on behalf of the Purchaser, the knowledge of the Purchaser, or the acceptance
      by
      the Purchaser of any certificate or opinion.

     

    4.30           No
      General
      Solicitation. Neither the Company, its Subsidiaries, any of their
      affiliates nor any person acting on their behalf, has engaged in any form of
      general solicitation or general advertising (within the meaning of
      Regulation D under the Securities Act) in connection with the offer or sale
      of the Notes and the Warrants.

     

    4.31           Insurance.  The
      Company has in full force and effect fire and casualty insurance policies,
      with
      extended coverage, sufficient in amount (subject to reasonable deductibles)
      to
      allow it to replace any of its properties that might be damaged or destroyed,
      and the Company has insurance against other hazards, risks, and liabilities
      to
      persons and property to the extent and in the manner customary for companies
      in
      similar businesses similarly situated.

     

    4.32           Regulatory
      Permits.
      The Company and the Subsidiaries possess all licenses, certificates,
      authorizations and permits issued by the appropriate federal, state, local
      or
      foreign regulatory authorities necessary to conduct their respective businesses,
      except where the failure to possess such permits would not have or reasonably
      be
      expected to result in a Material Adverse Effect (“Material
      Permits”), and believes it can obtain, without undue burden or
      expense, any similar authority for the conduct of its business as planned to
      be
      conducted, and neither the Company nor any Subsidiary has received any notice
      of
      proceedings relating to the revocation or modification of any Material
      Permit.

     


    
      
        
        

      

      
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    4.33           Title
      to Property and
      Assets. The Company (and each Subsidiary) owns its property and assets
      free and clear of all mortgages, liens, loans, pledges, security interests,
      claims, equitable interests, charges, and encumbrances, except such encumbrances
      and liens which arise in the ordinary course of business and do not materially
      impair the Company’s (and each Subsidiary’s) ownership or use of such property
      or assets and/or any such liens, encumbrances and security interests which
      arose
      in connection with the Prior Security Agreement. With respect to the property
      and assets it leases, the Company (and each Subsidiary) is in compliance with
      such leases and, to its knowledge, holds a valid leasehold interest free of
      any
      liens, claims, or encumbrances.

     

    4.34           Foreign
      Assets Control
      Legislation.  Neither the sale of the Notes nor the Warrants by
      the Company hereunder nor its use of the proceeds thereof will violate the
      Trading with the Enemy Act, as amended, or any of the foreign assets control
      regulations of the United States Treasury Department (31 CFR, Subtitle B,
      Chapter V, as amended) or any enabling legislation or executive order relating
      thereto. Without limiting the foregoing, neither the Company nor any of its
      Subsidiaries (a) is a person whose property or interests in property are blocked
      pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking
      Property and Prohibiting Transactions With Persons Who Commit, Threaten to
      Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) engages in
      any
      dealings or transactions, or be otherwise associated, with any such person.
      The
      Company and its Subsidiaries are in compliance with the USA Patriot Act of
      2001
      (signed into law October 26, 2001).

    


    4.35           Solvency.  Based
      on the financial condition of the Company as of the Closing Date (after giving
      effect to the transactions contemplated herein and in the other Transaction
      Documents), the Company’s assets do not constitute unreasonably small capital to
      carry on its business for the current fiscal year as now conducted and as
      proposed to be conducted including its capital needs taking into account the
      particular capital requirements of the business conducted by the Company, and
      projected capital requirements and capital availability thereof.  The
      Company does not intend to incur debts beyond its ability to pay such debts
      as
      they mature (taking into account the timing and amounts of cash to be payable
      on
      or in respect to its debt).

    


    5.      Representations
      and Warranties of the
      Purchaser. Each Purchaser hereby represents and warrants as of the date
      hereof and as of the Closing Date to the Company, acknowledging that the Company
      is relying upon the accuracy and completeness of the representations and
      warranties set forth herein to, among other things, ensure that registration
      under Section 5 of the Securities Act is not required in connection with
      the sale of the Securities hereby, as follows:

     

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

     


    
      
        
        

      

      
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    5.2           Investment
      Intent.
      The Purchaser represents and warrants to the Company that it is (a) an
“accredited investor” as defined in Rule 501 of Regulation D of the Securities
      Act; and (b) acquiring the Purchased Securities to be purchased by it pursuant
      to this Agreement for investment and not with a view to the distribution
      thereof.

     

    5.3           Investment
      Purposes.
      (a) The Purchaser is acquiring the Securities for investment purposes only,
      for
      its own account, and not as nominee or agent for any other Person, and not
      with
      a view to, or for resale in connection with, any distribution thereof within
      the
      meaning of the Securities Act, (b) it understands and acknowledges that the
      Securities have not been registered under the Securities Act or any other
      securities laws, (c) it is not an “affiliate” (as defined in Rule 144 under the
      Securities Act) of the Company, (d) it has such knowledge and experience in
      financial and business matters as to be capable of evaluating the merits and
      risks of its investment, (e) it is an “accredited investor” within the meaning
      of Rule 501 of Regulation D under the Securities Act, (f) the Company has made
      available to it the opportunity to ask questions and to receive answers, and
      to
      obtain information necessary to evaluate the merits and risks of this
      investment, and (g) it understands, acknowledges and agrees that the Securities
      have not been registered under (and that the Company has no present intention
      to
      register the Securities under) the Securities Act or applicable state securities
      laws, and may not be sold or otherwise transferred by the Purchaser to a United
      States person unless the Securities have been registered under the Securities
      Act and applicable U.S. state securities laws or are sold or transferred in
      a
      transaction exempt therefrom.

     

    5.4           Short
      Selling. The
      Purchaser hereby represents to the Company that the Purchaser will not make
      or
      maintain a “short” position in the Company's securities while any Notes or Prior
      Notes held by the Purchaser are outstanding.

    


    5.5           Prior
      Warrants and Prior
      Notes.  Purchaser agrees that the $1,250,000 in Prior Notes
      previously sold to Purchaser by the Company on October 23, 2006, had their
      Conversion Price (as defined therein) re-priced to the Conversion Price as
      defined in the Follow On Warrants.  Purchaser also agrees to waive any
      anti-dilution and/or reset rights that Purchaser may have pursuant to the Prior
      Warrants or Follow On Warrants (as provided by Section 4 therein) granted to
      Purchaser in connection with the applicable Prior Closing and Follow On Closing,
      in connection with any of the Warrants granted to Purchaser herein, and/or
      any
      other Warrants granted to any purchasers in connection with the offering, of
      which this Agreement is a part.


    
      
        
        

      

      
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    6.           Further
      Agreements of the Parties.

     

    6.1           Reserved
      Shares.  For so long as the Securities are outstanding, the
      Company shall reserve that number of shares of Common Stock issuable upon
      conversion of the Notes and exercise of the Warrants, which shares shall not
      be
      subject to any preemptive or other similar rights.

     

    6.2           Access
      to
      Information.  The Purchaser and its representatives shall be
      entitled, upon reasonable notice, to make such investigation of the properties,
      business and operations of the Company and such examination of the books,
      records and financial condition of the Company as it reasonably requests to
      make
      extracts and copies of such books and records, upon reasonable notice during
      regular business hours.  Any such investigation and examination shall
      be conducted during regular business hours and under reasonable circumstances
      without material interference with the Company’s normal business operations, and
      the Company and its representatives shall cooperate fully therein.  No
      investigation by a Purchaser or its Representatives prior to or after the date
      of this Agreement shall diminish or obviate any of the representations,
      warranties, covenants or agreements of the Company contained in this Agreement
      or the Transaction Documents.  In order for Purchaser to have full
      opportunity to make such physical, business, accounting and legal review,
      examination of the affairs of the Company and investigation as may be reasonably
      requested, the Company shall cause its Representatives to cooperate fully with
      the Representatives of the Purchaser in connection with such review and
      examination.

     

    6.3           Confidentiality.  Except
      as may be required by applicable Law or as otherwise agreed among the parties
      hereto, neither the Company, the Purchaser nor any of its Affiliates shall
      at
      any time divulge, disclose, disseminate, announce or release any information
      to
      any Person concerning this Agreement, the Transaction Documents, the
      transactions contemplated hereby or thereby, any trade secrets or other
      confidential information of the Company or the Purchaser, without first
      obtaining the prior written consent of the other parties hereto.

     

    6.4           Other
      Actions.  The Company and the Purchaser agree to execute and
      deliver such other documents and take such other actions as the other parties
      may reasonably request for the purpose of carrying out the intent of this
      Agreement and the Transaction Documents.

     

    6.5           Indemnification.
      The
      Company shall indemnify and hold harmless each Purchaser, the officers,
      directors, agents and employees of each of them, each Person who controls any
      such Purchaser (within the meaning of Section 15 of the Securities Act or
      Section 20 of the Exchange Act) and the officers, directors, agents and
      employees of each such controlling Person, to the fullest extent permitted
      by
      applicable law, from and against any and all losses, claims, damages,
      liabilities, costs (including, without limitation, reasonable attorneys' fees)
      and expenses (including the cost (including without limitation, reasonable
      attorneys’ fees) and expenses relating to an Indemnified Party’s (as defined
      below) actions to enforce the provisions of this Section 6.5)
      (collectively, “Losses”),
      as
      incurred, to the extent arising out of or relating to (i) any material
      misrepresentation or breach of any representation or warranty made by
      the
      Company in the Transaction Documents, or (ii) any material breach of any
      covenant, agreement or obligation of the Company contained in the Transaction
      Documents, or (iii) any cause of action, suit or claim brought or made against
      such Indemnified Party and arising out of or resulting from the execution,
      delivery, performance or enforcement of the Transaction Documents executed
      pursuant hereto by any of the Indemnified Parties. If the indemnification
      provided for in this Section 6.5 is held
      by a court of competent jurisdiction to be unavailable to an Indemnified Party
      with respect to any Losses, then the Indemnifying Party (as defined below),
      in
      lieu of indemnifying such Indemnified Party hereunder, shall contribute to
      the
      amount paid or payable by such Indemnified Party as a result of Losses in such
      proportion as is appropriate to reflect the relative fault of the Indemnifying
      Party on the one hand and of the Indemnified Party on the other in connection
      with the actions or omissions that resulted in such Losses as well as any other
      relevant equitable considerations.  The Company shall notify the
      Purchaser promptly of the institution, threat or assertion of any proceeding
      of
      which the Company is aware in connection with the transactions contemplated
      by
      this Agreement.

     

     (b)           Conduct
      of Indemnification
      Proceedings. If any proceeding shall be brought or asserted against any
      Person entitled to indemnity hereunder (an “Indemnified
      Party”), such Indemnified Party shall promptly notify the other
      party (the “Indemnifying
      Party”) in writing, and the Indemnifying Party shall have the
      right to assume the defense thereof, including the employment of counsel
      reasonably satisfactory to the Indemnified Party and the payment of all fees
      and
      expenses incurred in connection with defense thereof; provided, however,
      that the
      failure of any Indemnified Party to give such notice shall not relieve the
      Indemnifying Party of its obligations or liabilities pursuant to this Agreement,
      except (and only) to the extent that such failure shall have materially and
      adversely prejudiced the Indemnifying Party.

     

    An
      Indemnified Party shall have the right to employ separate counsel in any such
      proceeding and to participate in the defense thereof, but the fees and expenses
      of such counsel shall be at the expense of such Indemnified Party or Parties
      unless: (1) the Indemnifying Party has agreed in writing to pay such fees and
      expenses; (2) the Indemnifying Party shall have failed promptly to assume the
      defense of such proceeding and to employ counsel reasonably satisfactory to
      such
      Indemnified Party in any such proceeding; or (3) the named parties to any such
      proceeding (including any impleaded parties) include both such Indemnified
      Party
      and the Indemnifying Party, and such Indemnified Party shall have been advised
      by counsel that a conflict of interest is likely to exist if the same counsel
      were to represent such Indemnified Party and the Indemnifying Party (in which
      case, if such Indemnified Party notifies the Indemnifying Party in writing
      that
      it elects to employ separate counsel at the expense of the Indemnifying Party,
      the Indemnifying Party shall not have the right to assume the defense thereof
      and the reasonable fees and expenses of one separate counsel for all Indemnified
      Parties in any matters related on a factual basis shall be at the expense of
      the
      Indemnifying Party). The Indemnifying Party shall not be liable for any
      settlement of any such proceeding affected without its written consent, which
      consent shall not be unreasonably withheld. No Indemnifying Party shall, without
      the prior written consent of the Indemnified Party, effect any settlement of
      any
      pending proceeding in respect of which any Indemnified Party is a party, unless
      such settlement includes an unconditional release of such Indemnified Party
      from
      all liability on claims that are the subject matter of such
      proceeding.

     


    
      
        
        

      

      
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    The
      indemnification obligations under this Section 6.5 are in
      addition to any indemnification or similar obligations under any other
      Transaction Document.

     

    (d)           The
      provisions of this Section 6.5 shall
      survive the termination of this Agreement for a period of three (3)
      years.

     

    (e)           All
      payments to be made to Purchaser pursuant to this Section 6.5, shall be
      paid no later than five (5) business days after request for payment is sent
      to
      the Company.

    


    6.6           Co-Investment
      Rights.
      Each Purchaser hereby shall have the pro rata right of first refusal (which
      right shall be shared with the other Purchasers, who purchase Notes in
      connection with the Company’s current offering or Prior Closing) to invest (in
      such amounts that all of such Purchasers (including the Prior Purchasers and
      other Purchasers who invest during the offering to which this Agreement is
      a
      part) shall so elect) in any and all future financings (“Future
      Financings”) of the Company for thirty-six (36) months from the
      date of this Agreement on the identical terms offered to other investors. The
      Company shall provide each Purchaser with (i) express prior written notice
      of a Future Financing, and (ii) all required documentation requested by the
      Purchaser related to any Future Financing all no later than ten (10) business
      days prior to the final date of the offering period (or other applicable
      investment period) for any such Future Financings.  Such Co-Investment
      rights shall continue even if a Purchaser elects not to invest in one or more
      Future Financing.

    


    6.7           [Internationally
      removed].

    


    6.8           Board
      Representation. The Company,
      effective
      on the Closing, hereby grants Purchaser, which right shall be shared with all
      of
      the Purchasers (including the Prior Purchasers and other Purchasers who invest
      during the offering to which this Agreement is a part), the right to appoint
      one
      Director, or if it so elects, a Board Advisory Seat (with both the Prior
      Purchasers and current Purchaser electing as a group, one Director or Board
      Advisory Seat), and to receive all financial and other information provided
      to
      board members and to observe at all board meetings. The Purchaser nominee shall
      be immediately included and maintained in the Company’s Director and Officer
      insurance coverage. In the event Purchaser exercises its right to appoint a
      board member, the Company shall nominate an additional board member so that
      the
      total number of board members will be five (5). The Company shall provide to
      the
      Purchaser and any then designated observer, concurrently with, and by the same
      method of, transmission to the Board or any committee thereof, any notice of
      meeting, agenda and other materials.

    


    6.9           Bank
      Consent. The
      Company, prior to the Closing Date shall obtain the express written consent
      and/or necessary waivers from LaSalle Bank Nation Association (the “Bank”)
      and any
      other person, so as to approve and/or waive, as the case may be (i) this
      Agreement; (ii) the Notes and Warrants; (iii) any defaults or event of default
      that may have or will have occurred; and (iv) all other such Transaction
      Documents as may be deemed necessary (the “Bank
      Consent”).


    
      
        
        

      

      
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    6.10           Fees
      and
      Expenses.  Each party shall pay the fees and expenses of its
      advisors, counsel, accountants and other experts, if any, and all other
      expenses, incurred by such party incident to the negotiation, preparation,
      execution, delivery and performance of this
      Agreement.  Notwithstanding the foregoing sentence, the Company shall
      pay to The Loev Law Firm, PC, thousand dollars ($10,000), which amount may
      be
      withheld from the Purchase Price paid upon closing.

    


    7.      Other
      Obligations of the Parties.

     

    7.1           Public
      Announcements.  The Company hereby agrees not to, and not to
      permit its Subsidiaries to, issue any press release, or otherwise make any
      public statements (collectively, “Press
      Releases”) with respect to the transactions contemplated hereby
      without the prior written consent of the Purchaser, except as may be required
      by
      law.  Furthermore, where the Company desires to issue any such Press
      Release, the parties agree to cooperate in good faith in order to prepare such
      Press Release in such form and substance as is agreeable to both
      parties.

     

    7.2           Furnishing
      Information.  Each of the parties hereto will, as soon as
      practicable after reasonable request therefor, furnish all the information
      concerning it required for inclusion in any statement or application made by
      any
      of them to any governmental or regulatory body in connection with the
      transactions contemplated by this Agreement.

     

    7.3           Transfer
      Restrictions.

     

    (a)                      The
      Underlying Shares may only be disposed of in compliance with state and federal
      securities laws. In connection with any transfer of the Underlying Shares other
      than pursuant to an effective registration statement, or in connection with
      a
      pledge, as contemplated in Section 7.3(c)
      hereof, the Company may require the transferor thereof to provide to the Company
      an opinion of counsel selected by the transferor, the form and substance of
      which opinion shall be reasonably satisfactory to the Company, to the effect
      that such transfer does not require registration of such transferred Underlying
      Shares under the Securities Act. As a condition of transfer, any such transferee
      shall agree in writing to be bound by the terms of this Agreement and shall
      have
      the rights of a Purchaser under this Agreement and the Registration Rights
      Agreement.

     

    (b)                      The
      Purchaser agrees to the imprinting, so long as is required by Section 7.3(b),
      of a legend on any of the Underlying Shares in the following form:

     

    THESE
      SECURITIES HAVE NOT BEEN REGISTERED WITH THE SECURITIES AND EXCHANGE COMMISSION
      OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM
      REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
      ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES
      ACT OR
      PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO
      THE
      REGISTRATION REQUIREMENTS
      OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS
      AS
      EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
      SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE
      COMPANY.

     


    
      
        
        

      

      
        19

        
          

        

      

      
        
        

      

    


     

    (c)                      Certificates
      evidencing the Underlying Shares shall not contain any legend (including the
      legend set forth in Section 7.3(b))
      (i) subsequent to the date the Commission declares effective a registration
      statement covering the resale of the Underlying Shares, (ii) following any
      sale of the Underlying Shares pursuant to Rule 144, or (iii) if such
      Underlying Shares are eligible for sale under Rule 144(k).  The
      Company agrees that at such time as such legend is no longer required under
      and
      pursuant to this Section 7.3(c),
      it will, no later than two (2) Trading Days following the delivery by a
      Purchaser to the Company or the Company’s transfer agent of a Note for
      conversion, a Warrant for exercise, a restricted stock certificate or a lost
      securities affidavit, if any, of such securities are lost, as the case may
      be,
      deliver to such Purchaser a certificate representing Underlying Shares that
      is
      free from all restrictive and other legends  (the “Deadline”).
      The Company may not make any notation on its records or give instructions to
      any
      transfer agent of the Company that enlarge the restrictions on transfer set
      forth in this Section.

     

    7.4           Underlying
      Share Delivery
      Damages. In the event that a non-legended certificate for Underlying
      Shares is not received by a Purchaser by the Deadline, as partial compensation
      to the Purchaser for such loss as a result of such delivery delay, the Company
      shall pay (as liquidated damages and not a penalty) to the Purchaser for late
      issuance of the Underlying Shares an amount of $100 per business day after
      the
      Deadline for each $10,000 of principal amount of the Note being converted,
      and/or or $10,000 of market value (based upon the then stock price of the
      Company) of Underlying Shares of the Warrant being exercised for, as the case
      may be, which are not timely delivered.  The penalties in this Section 7.4 are in
      addition to and shall not limit any other penalty provisions in the Transaction
      Documents and shall not limit the Purchaser’s right to collect other damages
      and/or remedies.

    


    7.5           Integration.
      The
      Company shall not sell, offer for sale or solicit offers to buy or otherwise
      negotiate in respect of any security (as defined in Section 2 of the
      Securities Act) that would be integrated with the offer or sale of any of the
      Securities in a manner that would require the registration under the Securities
      Act of the sale of the Securities to the Purchaser or that would be integrated
      with the offer or sale of the Securities for purposes of the rules and
      regulations of any Trading Market.  The Purchaser and the Company
      agree that the current Registration Statement which has been filed with the
      SEC
      will be withdrawn and refiled.

     

    7.6           Use
      of Proceeds. The
      Company covenants and agrees that the net proceeds that it receives from the
      sale of the Notes shall be used as follows: $200,000 to pay LaSalle and $400,000
      for working capital.

     

    7.7           Form D
      and Blue
      Sky. The Company shall file a Form D with respect to the Securities
      as required under Regulation D under the Securities Act and, upon written
      request, provide
      a
      copy thereof to each Purchaser promptly after such filing. The Company shall,
      on
      or before the Closing, take such action as the Company shall reasonably
      determine is necessary in order to obtain an exemption for or to qualify any
      Securities for sale to the Purchaser pursuant to this Agreement under applicable
      securities or “Blue Sky” laws of the states of the United States, and shall
      provide evidence of any such action so taken to the Purchaser on or prior to
      the
      Closing. The Company shall make all filings and reports relating to the offer
      and sale of the Securities required under applicable securities or “Blue Sky”
laws of the states of the United States following the Closing.


     


    
      
        
        

      

      
        20

        
          

        

      

      
        
        

      

    


     

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

     

    7.9           Securities
      Laws
      Disclosure. The Company shall, by the end of business on the fourth (4th)
      Business Day following the Closing, use its best efforts to issue a press
      release or file a Current Report on Form 8-K, disclosing the transactions
      contemplated hereby and make such other filings and notices in the manner and
      time required by the Commission.

     

    8.      Conditions
      to Closing.

     

    8.1           Conditions
      of Obligations of
      the Purchaser.  The obligation of the Purchaser to purchase and
      pay for the Securities is subject to the fulfillment prior to or on the Closing
      Date of the following conditions, any of which may be waived in whole or in
      part
      by the Purchaser:

     

    (a)           Representations,
      Warranties
      and Covenants.  The representations and warranties of the
      Company under this Agreement shall be deemed to have been made again on the
      Closing Date (other than those representations and warranties made expressly
      as
      of a date prior to the Closing Date) and shall then be true and
      correct.  The Company shall represent to the Purchaser that all of the
      information contained herein does not contain any untrue statement of a material
      fact, or contain any omission of a material fact relating to such information
      that is necessary in order to make the information, in light of the
      circumstances under which the information is provided, not
      misleading.

     

    (b)           Compliance
      with
      Agreement.  The Company shall have performed and complied with
      all covenants, agreements and conditions required by this Agreement to be
      performed or complied with by the Company on or before the Closing
      Date.

     

    (c)           Approvals.  The
      Company shall have obtained any and all consents, waivers, approvals or
      authorizations, with or by any Governmental Body or any other Person required
      for the valid execution of this Agreement and the transactions contemplated
      hereby.

     

    (d)           No
      Injunction.  No Governmental Body or any other Person shall
      have issued an Order which shall then be in effect restraining or prohibiting
      the completion of the transactions contemplated hereby, nor shall any such
      Order
      be threatened or pending.

     

    
      
        
        

      

      
        21

        
          

        

      

      
        
        

      

    

    (e)           No
      Material Adverse
      Change.  Since March 31, 2007, there shall not have been a
      Material Adverse Change.

     

    (f)           Certificate
      of
      Officer.  The Company shall have delivered to the Purchaser a
      certificate dated the Closing Date, executed by its Chief Executive Officer
      and
      Chief Financial Officer, certifying the satisfaction of the conditions specified
      in paragraphs (a), (b), (c), (d) and (e) of this Section
      8.1.

     

    (g)           Opinion
      of the Company’s
      Counsel.  The Purchaser shall have received from Company
      counsel, in a form satisfactory to the Purchaser and its counsel, an opinion
      dated the Closing Date.

     

    (h)           Certificate
      of Incorporation
      and By-Laws.  The Certificate of Incorporation, as amended, and
      the By-Laws, shall be in full force and effect as of the Closing under the
      laws
      of the State of Nevada and shall not have been further amended or
      modified.  A certified copy of the Certificate of Incorporation, as so
      amended, shall have been delivered to counsel for the Purchaser.

     

    (i)                      Closing
      Documents Provided
      By Company.  The Purchaser (or such other person as referred to
      herein) shall have received the following:

     

    (i)                
        a Note in favor of each Purchaser, duly executed by the Company,
      entitling the Purchaser to payment in the amount as stated in Schedule 1.1
      herein;

     

    (ii)                 
      Warrants in the name of the Purchaser, duly executed by the Company, entitling
      the Purchaser to purchase such amount of Warrant Shares as stated in Schedule 1.1
      herein;

     

    (iii)                 the
      Registration Rights Agreement duly executed by the Company;

     

    (iv)                 the
      Security Agreement duly executed by the Company and all documents necessary
      to
      perfect the security interest of the Purchaser;

     

    (v)                 
      this Agreement duly executed by the Company;

     

    (vi)                 
      Secretary’s Certificate in a form reasonably acceptable to Purchaser, with the
      Officer’s Certificate and good standing certificates of the Company and each
      Subsidiary as of a recent date;

     

    (vii)                 Legal
      Opinion;

    


    (viii)                Copy
      of the Bank Consent for the Company to enter into this new debt and all
      necessary waivers of Bank covenants prohibiting such action;

    


    (ix)                 
       Copies of all Uniform Commercial Code Financing Statements filed in the
      State of Nevada, California, Illinois, New Jersey and New York in connection
      with the Security Agreement; and

    


    (ix)                   such
      other documents as the Purchaser and/or its legal counsel may request and/or
      deem necessary (including, but not limited to, a Good Standing Certificate
      of
      recent date from the Secretary of State of the State of Nevada).

    


    
      
        
        

      

      
        22

        
          

        

      

      
        
        

      

    

    8.2           Conditions
      of Company’s
      Obligations.  The Company’s obligation to issue and sell the
      Securities to the Purchaser on the Closing Date is subject to the fulfillment
      prior to or on the Closing Date of the following conditions, any of which may
      be
      waived in whole or in part by the Company:

    


    (a)           Representations
      and
      Warranties.  The representations and warranties of the
      Purchaser under this Agreement shall be deemed to have been made again on the
      Closing Date and shall then be true and correct in all material
      respects.

     

    (b)           Compliance
      with
      Agreement.  The Purchaser shall have performed and complied
      with all agreements and conditions required by this Agreement to be performed
      or
      complied with by such Purchaser on or before the Closing.

     

    (c)           Approvals.  The
      Purchaser shall have obtained any and all consents, waivers, approvals, Permits
      or authorizations, with or by any Governmental Body or any other Person required
      for the valid execution of this Agreement and the transactions contemplated
      hereby including, but not limited to the approval by.

     

    (d)           Payment
      of Purchase
      Price.  The Purchaser shall have delivered to the Company the
      Purchase Price specified in Section 2.1
      hereof.

     

    (e)           No
      Injunction.  No Governmental Body or any other Person shall
      have issued an Order which shall then be in effect restraining or prohibiting
      the completion of the transactions contemplated hereby, nor shall any such
      Order
      be threatened or pending.

     

    (f)            Closing
      Documents Provided
      By Purchaser.  The Company shall have received the
      following:

     

    (i)
      this Agreement duly executed by
      the Purchaser;

     

    (ii)
      the Registration Rights Agreement
      duly executed by the Purchaser; and

     

    (iii)
      the
      Security Agreement executed by the Purchaser.

    


    8.3           Post
      Closing
      Obligations. Following the Closing Date:

    


                    
      (i)  the Company shall file all necessary documents in accordance with
      their obligations under the Security Agreement;

    


                     (ii)
      Company’s Counsel shall file all post closing Form D Filings and Blue Sky
      filings in the necessary jurisdictions.

    


    
      
        
        

      

      
        23

        
          

        

      

      
        
        

      

    

    9.      Miscellaneous.

     

    9.1           Certain
      Definitions.

     

     

    “Action”
shall
      have the meaning ascribed to such term in Section 4.20.

     

    “Affiliate”
of
      any Person means any Person that directly or indirectly controls, or is under
      control with, or is controlled by, such Person.  As used in this
      definition, “control”
      (including with its correlative meanings, “controlled
      by”
and “under  control
      with”) shall mean the possession, directly or indirectly, of the
      power to direct or cause the direction of the management or policies of a Person
      (whether through ownership of securities or partnership or other ownership
      interests, by contract or otherwise).

    


     

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

     

     

    “Closing”
means
      the closing of the purchase and sale of the Notes and the Warrants pursuant
      to
Section 3.1 on
      December 21, 2007, or such other date as mutually agreed to by the
      parties.

     

     

    “Closing
      Date”
means the date of the Closing.

     

    “Code”
means
      the Internal Revenue Code of 1986, as amended, and the rules and regulations
      promulgated thereunder.

     

     

    “Commission”
      means the Securities and Exchange Commission.

     

    “Common
      Stock”
means the shares of common stock, par value $0.001 per share,
      of the
      Company.

     

    
      
        
        

      

      
        24

        
          

        

      

      
        
        

      

    

     

    “Company
      Counsel” means David M. Loev, Esq.

     

    “Contract”
      means any contract, agreement, indenture, note, bond, loan, instrument, lease,
      conditional sales contract, mortgage, license, franchise, insurance policy,
      commitment or other arrangement or agreement, whether written or
      oral.

     

     

    “Conversion
      Shares”
means
      all shares of Common Stock issuable upon conversion of the
      Notes.

     

    “Employee”
      means any current employee, office consultant, agent, officer or director of
      the
      Company.

     

     

    “Exchange
      Act”
means the Securities Exchange Act of 1934, as amended.

     

    “Exhibits”
      shall mean the following exhibits attached hereto and made a part of this
      Agreement:

    


    Exhibit
      A–
Registration Rights Agreement

    Exhibit
      B– Form of
      Warrants

    Exhibit
      C– Form of
      Note

    Exhibit
      D– Security
      Agreement

    


    “Governmental
      Body” means any government or governmental or regulatory body
      thereof, or political subdivision thereof, whether federal, state, local or
      foreign, or any agency, instrumentality or authority thereof, or any court
      or
      arbitrator (public or private).

    


    “Law”
means
      any
      federal, state, local or foreign law, statute, code, ordinance, rule, regulation
      or other requirement or guideline.

     

    “Legal
      Proceeding” means any judicial, administrative or arbitral
      actions, suits, proceedings (public or private), claims or governmental
      proceedings.

     

    “Lien”
means
      any mortgage, pledge, security interest, encumbrance, lien or charge of any
      kind, including, without limitation, any conditional sale or other title
      retention agreement, any lease in the nature thereof and the filing of or
      agreement to give any financing statement under the Uniform Commercial Code
      (or
      similar laws) of any jurisdiction and including any lien or charge arising
      by
      statute or other law.

     

    “Material
      Adverse
      Change” means any material adverse change in the business, assets,
      liabilities, prospects, properties, results of operations or condition
      (financial or otherwise) of the Company and its Subsidiaries, taken as a
      whole.

     

    
      
        
        

      

      
        25

        
          

        

      

      
        
        

      

    

    “Material
      Adverse
      Effect” means any event, circumstance, condition, fact, effect, or
      other matter which has had or could reasonably be expected to have a material
      adverse effect (i) on the business, assets, liabilities, prospects, properties,
      results of operations or condition (financial or otherwise) of the Company
      and
      its Subsidiaries taken as a whole or (ii) on the ability of the Company or
      its
      Subsidiaries to perform on a timely basis any material obligation under this
      Agreement or to consummate the transactions contemplated hereby.

     

    “Notes”
shall
      have the meaning ascribed to such term in Section 1.1.

     

    “Order”
means
      any order, injunction, judgment, decree, ruling, writ, assessment or arbitration
      award.

     

    “Permits”
means
      any approvals, authorizations, consents, licenses, permits or certificates
      by or
      of any Governmental Body.

     

    “Person”
means
      any individual, corporation, partnership, firm, joint venture, association,
      joint-stock company, trust, unincorporated organization, Governmental Body
      or
      other entity.

     

     

    “Registration
      Statement” means a registration statement meeting the requirements
      set forth in the Registration Rights Agreement and covering, among other items,
      the resale by the Purchaser of the Underlying Shares.

     

     

    “Registration
      Rights
      Agreement” means the Registration Rights Agreement, dated as of
      the date of this Agreement, among the Company and the Purchaser, in the form
      of
Exhibit A
      hereto.

     

     

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

     

     

    “SEC
      Reports”
shall have the meaning ascribed to such term in Section 4.9.

     

    “Securities
      Act” means the Securities Act of 1933, as amended, or any similar
      federal statute, and the rules and regulations of the Securities and Exchange
      Commission thereunder, all as the same shall be in effect at the
      time.

     

     

    “Subsidiary”
      shall have the meaning ascribed to such term in Section 4.4.

     

    
      
        
        

      

      
        26

        
          

        

      

      
        
        

      

    

    “Taxes”
means
      any federal, state, local or foreign income, gross receipts, license, payroll,
      employment, excise, severance, stamp, occupation, premium, windfall profits,
      environmental (including taxes under Section 59A of the Code), customs duties,
      share capital, franchise, profits, withholding, social security (or similar),
      unemployment, disability, real property, personal property, sales, use,
      transfer, registration, value-added, alternative or add-on minimum, estimated,
      or other tax of any kind whatsoever, including any interest, penalty, or
      addition thereto, whether disputed or not.

     

    “Trading
      Day”
means (a) a day on which the Common Stock is traded on a Trading Market,
      or
      (b) if the Common Stock is not quoted on a Trading Market, a day on which
      the Common Stock is quoted in the over-the-counter market as reported by the
      National Quotation Bureau Incorporated (or any similar organization or agency
      succeeding to its functions of reporting price); provided, that in the event
      that the Common Stock is not listed or quoted as set forth in (a), and
      (b) hereof, then Trading Day shall mean a Business Day.

     

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

     

     

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

     

     

    “Warrants”
      shall have the meaning ascribed to such term in Section 1.1.

     

    9.2           Further
      Assurances.  The Company and the Purchaser agree to execute and
      deliver such other documents or agreements as may be necessary or desirable
      for
      the implementation of this Agreement and the consummation of the transactions
      contemplated hereby.

     

    9.3           Entire
      Agreement; Amendments
      and Waivers.  This Agreement (including the Schedules and
      Exhibits hereto) represents the entire understanding and agreement among the
      parties hereto with respect to the subject matter hereof and can be amended,
      supplemented or changed, and any provision hereof can be waived, only by written
      instrument making specific reference to this Agreement signed by the parties
      hereto.  No action taken pursuant to this Agreement, including without
      limitation, any investigation by or on behalf of any party, shall be deemed
      to
      constitute a waiver by the party taking such action of compliance with any
      representation, warranty, covenant or agreement contained herein.  The
      waiver by any party hereto of a breach of any provision of this Agreement shall
      not operate or be construed as a further or continuing waiver of such breach
      or
      as a waiver of any other or subsequent breach.  No failure on the part
      of any party to exercise, and no delay in exercising, any right, power or remedy
      hereunder shall operate as a waiver thereof, nor shall any single or partial
      exercise of such right, power or remedy by such party preclude any other or
      further exercise thereof or the exercise of any other right, power or
      remedy.  All remedies hereunder are cumulative and are not exclusive
      of any other remedies provided by law.

     

    9.4           Construction.  The
      headings herein are for convenience only, do not constitute a part of this
      Agreement and shall not be deemed to limit or affect any of the provisions
      hereof. The language used in this Agreement will be deemed to be the language
      chosen by the parties to express their mutual intent, and no rules of strict
      construction will be applied against any party.

     

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

     

    
      
        
        

      

      
        27

        
          

        

      

      
        
        

      

    

    9.6           No
      Third-Party
      Beneficiaries.  This Agreement is intended for the benefit of
      the parties hereto and their respective successors and permitted assigns and
      is
      not for the benefit of, nor may any provision hereof be enforced by, any other
      Person.

     

    9.7           Governing
      Law.  This Agreement shall be governed by and construed
      exclusively in accordance with the internal laws of the State of New York
      without regard to the conflicts of laws principles thereof. The parties hereto
      hereby irrevocably agree that any suit or proceeding arising directly and/or
      indirectly pursuant to or under this Agreement, shall be brought solely in
      a
      federal or state court located in the City, County and State of New York. By
      its
      execution hereof, the parties hereby covenant and irrevocably submit to the
      in personam
      jurisdiction
      of the federal and state courts located in the City, County and State of New
      York and agree that any process in any such action may be served upon any of
      them personally, or by certified mail or registered mail upon them or their
      agent, return receipt requested, with the same full force and effect as if
      personally served upon them in New York City. The parties hereto waive any
      claim
      that any such jurisdiction is not a convenient forum for any such suit or
      proceeding and any defense or lack of inpersonam
      jurisdiction
      with respect thereto. In the event of any such action or proceeding, the party
      prevailing therein shall be entitled to payment from the other party hereto
      of
      all of its reasonable legal fees and expenses.

     

    9.8           Headings;
      Interpretive
      Matters.  The section headings of this Agreement are for
      reference purposes only and are to be given no effect in the construction or
      interpretation of this Agreement.  No provision of this Agreement will
      be interpreted in favor of, or against, any of the parties hereto by reason
      of
      the extent to which any such party or its counsel participated in the drafting
      thereof or by reason of the extent to which any such provision is inconsistent
      with any prior draft hereof or thereof.

     

    9.9           Confidentiality.  Each
      party hereto covenants and agrees
      to treat any non-public information provided to it by the Company concerning
      the
      business and finances of the Company (“Corporate
      Information”) as confidential
      and agrees further
      that it will not use, exploit, reproduce, disclose or provide Corporate
      Information to any third-party (other than any agents of the parties who are
      bound by substantially similar obligations of
      confidentiality)
      on its own behalf or otherwise, except with the consent of the Company or as
      required by law, legal process or any federal or state regulatory body having
      jurisdiction over such party.  The provisions of this Section
      9.9 shall not apply
      to any information which:

     

    (a)           was
      within the public domain prior to the time of disclosure of Corporate
      Information to the receiving party or which comes into the public domain other
      than as a result of a breach by the party of this Section
      9.9;

     

    (b)           was
      rightfully acquired by the receiving party from a third party without, to the
      knowledge of the receiving party, any restriction or any obligation of
      confidentiality; or

     

    (c)           was
      independently developed by the receiving party without any use or reference
      to
      the Corporate Information.

     

    The
      provisions of this Section 9.9 shall
      survive the termination of this Agreement, either in whole or as to any party,
      for a period of two (2) years.

     


    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    


    9.10           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 (a) the next Business Day, if sent by U.S. nationally
      recognized overnight courier service, or (b) upon actual receipt by the
      party to whom such notice is required to be given. The address for such notices
      and communications to the Company shall be as set forth below and for each
      Purchaser shall be as set forth on the signature pages attached
      hereto.

     

    
      	
               

            	
              If
                to the Company:

            


    

    


    
      	
               

            	
              XA,
                Inc.

            


    

    875
      North
      Michigan Avenue, Suite 2626,

    Chicago,
      IL 60611

    Attention:  Joseph
      Wagner, President

    Telephone:  312-397-9100

    


    
      	
               

            	
              With
                a copy to:

            


    

    


    David
      M.
      Loev

    The
      Loev
      Law Firm, PC

    6300
      West
      Loop South, Suite 280

    Bellaire,
      Texas 77401

    Telephone:
      713-524-4110

    


    
      	
               

            	
              If
                to the Purchaser:

            


    

    


    ______________________

    ______________________

    ______________________

    ______________________

    ______________________

    


    
      	
               

            	
              With
                a copy to:

            


    

    


    
      	
               

            	
              ______________________

            


    

    ______________________

    ______________________

    ______________________

    ______________________

    ______________________

    


    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

    All
      notices are effective upon receipt or upon refusal if properly
      delivered.

    


    9.11           Severability.
      If any
      provision of this Agreement is invalid or unenforceable, the balance of this
      Agreement shall remain in effect.

    


    9.12           Binding
      Effect;
      Assignment. This Agreement shall be binding upon and insure to the
      benefit of the parties and their respective successors and permitted
      assigns.  No assignment of this Agreement or of any rights or
      obligations hereunder may be made by the Company or the Purchaser (by operation
      of law or otherwise) without the prior written consent of the other parties
      hereto and any attempted assignment without the required consents shall be
      void.

    


    9.13           Counterparts.  This
      Agreement may be executed simultaneously in two or more counterparts, each
      of
      which shall be deemed an original but all of which together shall constitute
      one
      and the same instrument.

     

    9.14           Incorporation
      by Reference;
      Breach of Security Agreement. Any default and/or breach of the Security
      Agreement shall be considered a breach and/or default of this
      Agreement.  All covenants, agreements and obligations of the Company
      in the Security Agreement shall be expressly incorporated by reference herein
      as
      if made directly herein and shall survive termination of this
      Agreement.

    


    


    [The
      rest
      of this page has been intentionally left blank]

     

    


     


    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    


    IN
      WITNESS WHEREOF, the
      parties hereto have executed or have caused this Agreement to be executed by
      their respective officers thereunto duly authorized, as of the date first
      written above.

     

    


    XA,
      INC.

    


    


    


    By:         
      /s/ Joseph
      Wagner                                                       

    Joseph
      Wagner

    Chief
      Executive Officer

    


    


    

      
        
          
          

        

        
          31

          
            

          

        

        
          
          

        

      



    PURCHASER’S
      SIGNATURE PAGE TO
      SECURITIES PURCHASE AGREEMENT

    


    


    Vision
      Opportunity Master Fund, Ltd.

    


    By:          /s/
      Adam
      Benowitz                                                   

    Name:
      Adam Benowitz

    Title:
      Director

    


    


    Address:
      20 W. 55th St, 5th Fl. New York, NY 10019

    


    


    Facsimile
      Number: 212-867-1416

    


    $200,000

    


    


    


    



    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    


    Schedule
      1.1

    


    Purchaser

    


    


    
      	
              NAME
                AND
                ADDRESS

              OF
                EACH
                PURCHASER

            	
              PRINCIPAL
                NOTE

              AMOUNT
                PURCHASED

            
	 	
              Vision
                Opportunity

              Master
                Fund, Ltd.

            	
              $200,000

            	 


    

    



    
      
        
        

      

      
        33