Unassociated Document


    SECURITIES
PURCHASE AGREEMENT

     

    This
Securities Purchase Agreement (this “Agreement”) is dated as of
January 10, 2011, by and among ECOtality, Inc., a Nevada corporation (the “Company”), and ABB Technology
Ventures Ltd. (the “Investor”).

     

    WHEREAS,
subject to the terms and conditions set forth in this Agreement and pursuant to
Section 4(2) of the Securities Act (as defined below) and Rule 506 promulgated
thereunder, the Company desires to issue and sell to each Investor, and each
Investor, severally and not jointly, desires to purchase from the Company
certain securities of the Company, as more fully described in this
Agreement.

     

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

     

    ARTICLE
1.

    DEFINITIONS

     

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

     

    “Action” means any action,
suit, inquiry, notice of violation, proceeding (including any partial proceeding
such as a deposition) or investigation pending or threatened in writing against
or affecting the Company, any Subsidiary or any of their respective properties
before or by any court, arbitrator, governmental or administrative agency,
regulatory authority (federal, state, county, local or foreign), stock market,
stock exchange or trading facility.

     

    “Affiliate” means any Person
that, directly or indirectly through one or more intermediaries, controls or is
controlled by or is under common control with a Person, as such terms are used
in and construed under Rule 144.

     

    “Business Day” means any day
except Saturday, Sunday and any day which is 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 Securities pursuant to Article
2.

     

    “Closing Date” means the third
Business Day immediately after the date on which all of the conditions set forth
in Sections 5.1
and 5.2 hereof
(other than those that are satisfied at the Closing itself) have been satisfied
or, if permissible, waived, or such other date as the parties may
agree.

     

    “Commission” means the U.S.
Securities and Exchange Commission.


    
      
         


      

      
         


        
          

        

      

      
         


      

    


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

     

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

     

    “Company Counsel” means Farella
Braun + Martel LLP.

     

    “Company Deliverables” has the
meaning set forth in Section
2.2(a).

     

    “Confidential Information”
means trade secrets, confidential information and proprietary know how
(including ideas, formulae, compositions, processes, procedures and techniques,
research and development information, computer program code, performance
specifications, support documentation, drawings, specifications, designs,
business and marketing plans, pricing and cost information, and customer and
supplier lists and related information).

     

    “Confidentiality Agreement”
means that certain Mutual Nondisclosure and Confidentiality Agreement, dated as
of August 4, 2010, by and between the Company and the Investor.

     

    “Disclosure Materials” has the
meaning set forth in Section
3.1(h).

     

    “Effective Date” means the date
that the Registration Statement required by Section 2(a) of the Investor Rights
Agreement is first declared effective by the Commission.

     

    “Environmental Laws” means all
Laws, now or hereafter in effect and as amended, relating to the Environment,
health, safety, natural resources or Hazardous Materials, including CERCLA; the
Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Hazardous
Materials Transportation Act, 49 U.S.C. §§ 6901 et seq.; the Clean Water Act, 33
U.S.C. §§ 1251 et seq.; the Toxic Substances Control Act, 15 U.S.C. §§ 2601 et
seq.; the Clean Air Act, 42 U.S.C. §§ 7401 et seq.; the Safe Drinking Water Act,
42 U.S.C. §§ 300f et seq.; the Atomic Energy Act, 42 U.S.C. §§ 2011 et seq.; the
Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq.; and
the Federal Food, Drug and Cosmetic Act, 21 U.S.C. §§ 301 et seq.

     

    “Evaluation Date” has the
meaning set forth in Section
3.1(v).

     

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

     

    “GAAP” means U.S. generally
accepted accounting principles.

     

    “Government Assistance
Agreement” means any means (a) any written grant or cooperative
agreement, as set forth in 31 U.S.C. § 6301, et seq., between two or more
parties that includes the Company or any of its Subsidiaries on the one hand and
a Governmental Authority on the other; or (b) any agreement between the Company
or any of its Subsidiaries on the one hand and a third party on the other in
support of the performance of a grant or cooperative agreement between that
third party and a Governmental Authority.


    
      
         


      

      
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    “Government Bid” means any
quotation, bid or proposal by the Company or any of its Subsidiaries that, if
accepted or awarded, would result in a Government Contract.

     

    “Government Contract” means any
written contract or agreement (other than a Government Assistance Agreement)
that constitutes a binding commitment between two or more parties that: (a)
includes the Company or any of its Subsidiaries on the one hand and a
Governmental Authority on the other; or (b) is entered into by the Company or
any of its Subsidiaries on the one hand and a third party on the other in
support of a contract between that third party and a Governmental Authority; for
the design, manufacture or sale of products or the provision of services by the
Company, any of its Subsidiaries or such third party, or specifying the terms
under which products or services will ultimately be purchased by or reimbursed
by or on behalf of a Governmental Authority in whole or in part.

     

    “Governmental Authority” means
any domestic (federal, state, municipal or local) or foreign or multinational
government or governmental, regulatory, political, judicial or quasi judicial or
administrative subdivision, department, authority, entity, agency, commission,
board, bureau, court, or instrumentality.

     

    “Hazardous Materials” means (i)
petroleum and petroleum products, radioactive materials, asbestos-containing
materials, urea formaldehyde foam insulation, transformers or other equipment
that contain polychlorinated biphenyls and radon gas and (ii) any other
chemicals, materials or substances defined as or included in the definition of
“hazardous substances,” “hazardous wastes,” “hazardous materials,” “extremely
hazardous wastes,” “restricted hazardous wastes,” “toxic substances,” “toxic
pollutants,” “contaminants” or “pollutants,” or words of similar import, under
any applicable Environmental Law.

     

    “Intellectual Property Rights”
means all of the following in any jurisdiction throughout the world, and all
corresponding rights, presently or hereafter existing, whether arising by
operation of law, contract, license or otherwise: (i) patents, industrial
designs, patent disclosures and inventions (whether or not patentable and
whether or not reduced to practice); together with all improvements thereto, and
all reissues, continuations, continuations in part, revisions, divisionals,
extensions, and reexaminations in connection with any of the foregoing; (ii)
trademarks, service marks, trade dress, trade names, corporate names, designs,
logos, slogans, Internet domain names, and all other indicia of origin, together
with all goodwill associated with each of the foregoing (collectively, “Marks”); (iii) all works of
authorship (whether or not copyrightable), copyrights and copyrightable works,
mask works, database rights and moral rights; (iv) registrations, applications
and renewals for any of the foregoing; (v) software (including source code,
executable code, systems, tools, firmware, data, data bases and documentation
therefor); (vi) Confidential Information; (vii) all other proprietary and
intellectual property rights; and (viii) all copies and tangible embodiments or
descriptions of any of the foregoing (in whatever form or medium).

     

    “Investment Amount” means
$10,000,000.


    
      
         


      

      
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    “Investor” has the meaning set
forth in the Recitals hereto.

     

    “Investor Directors” has the
meaning given such term in the Investor Rights Agreement.

     

    “Investor Party” has the
meaning set forth in Section
4.6.

     

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

     

    “Law” means any federal,
national, supranational, state, provincial, local or similar statute, law,
ordinance, regulation, rule, code, order, or rule of law (including common law)
of any Governmental Authority, and any judicial or administrative interpretation
thereof.

     

    “Lien” means any lien, charge,
mortgage, pledge, deed of trust, conditional sale or other title retention
agreement, encumbrance, security interest, right of first refusal or other
restrictions of any kind.

     

    “Losses” has the meaning set
forth in Section
4.6.

     

    “Material Adverse Effect” means
any event, change, condition, development, circumstance, effect, factor or
occurrence that (i) has a material and adverse effect on the legality, validity
or enforceability of any Transaction Document, (ii) has a material and adverse
effect on the operations, assets, prospects, business, liabilities or condition
(financial or otherwise) of the Company and its Subsidiaries, taken as a whole
or (iii) materially and adversely impairs the ability of the Company to perform
on a timely basis its obligations under, or to consummate the transactions
contemplated by, the Transaction Documents.

     

    “Money Laundering Laws” has the
meaning set forth in Section
3.1(hh).

     

    “New York Courts” means the
courts of the State of New York and the United States District Court for the
Southern District of New York.

     

    “OFAC” has the meaning set
forth in Section
3.1(gg).

     

    “Outside Date” means the
sixtieth (60th)
calendar day following the date of this Agreement; provided, that if
such day should fall on a day that is not a Business Day, the Outside Date shall
be deemed the next subsequent day that is a Business Day.

     

    “Owned Real Property” means all
land, together with all buildings, structures, improvements and fixtures located
thereon, and all easements and other rights and interests appurtenant thereto,
owned by the Company or any of its Subsidiaries and used in the Company’s or its
Subsidiaries’ business as such business is described in the SEC
Reports.

     

    “Per Share Purchase Price”
shall be equal to 110% of the VWAP for the ten (10) Trading Days immediately
preceding the Closing Date, provided that in no event shall the Per Share
Purchase Price be less than $3.62 nor greater than $3.84.  The Per
Share Purchase Price shall be rounded to the nearest $0.01 to such dollar value
as to yield a whole number of Shares when the Investment Amount is divided by
the Per Share Purchase Price.


    
      
         


      

      
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    “Permitted Liens” means: (i)
Liens for taxes, assessments, governmental charges or claims, that are not yet
due and payable (provided that such items are properly reserved for o the books
of the Company); (ii) statutory Liens of landlords and Liens of carriers,
warehousemen, mechanics, materialmens and other similar Liens arising or
incurred in the ordinary course of business and imposed by Law; (iii) Liens
incurred or deposits made in connection with obligations not due or delinquent
with respect to workers’ compensation, unemployment insurance and other types of
social security; and (iv) Liens listed on Schedule 3.1(p).

     

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

     

    “Placement Agent” has the
meaning set forth in Section
3.1(x).

     

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

     

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

     

    “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” has the meaning
set forth in Section
3.1(h).

     

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

     

    “Securities Act” means the
Securities Act of 1933, as amended.

     

    “Shares” means the number of
shares of Common Stock equal to the quotient obtained by dividing (a) the
Investment Amount by (b) the Per Share Purchase Price.

     

    “Short Sales” include, without
limitation, all “short sales” as defined in Rule 200 promulgated under
Regulation SHO under the Exchange Act and all types of direct and indirect stock
pledges, forward sale contracts, options, puts, calls, swaps and similar
arrangements (including on a total return basis), and sales and other
transactions through non-US broker dealers or foreign regulated
brokers.

     

    “Subsidiary” means, as to the
Company, any “subsidiary” as defined in Rule 1-02(x) of the Regulation S-X
promulgated by the Commission under the Exchange Act.


    
      
         


      

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

     

    “Trading Market” means
whichever of the New York Stock Exchange, NYSE Amex, the NASDAQ Stock Market
(including, for the avoidance of doubt, the NASDAQ Global Select Market, the
NASDAQ Global Market and the NASDAQ Capital Market and any successor markets
thereto) or OTC Bulletin Board on which the Common Stock is listed or quoted for
trading on the date in question.

     

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

     

    “Transactions” means the
transactions contemplated by the Transaction Documents.

     

    “VWAP” means, for any date, the
average of the daily volume weighted average prices of the Common Stock for such
date (or the nearest preceding date) on the Trading Market on which the Common
Stock is then listed or quoted.

     

    “Warrant” means a Common Stock
purchase warrant in the form of Exhibit B,
pursuant to which the Investor shall have the right to acquire the number of
shares of Common Stock equal to 40% of the number of Shares issuable to the
Investor pursuant to Section
2.2(a)(i).

     

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

     

    ARTICLE
2.

    PURCHASE
AND SALE

     

    2.1          Closing.  Upon
the terms and subject to the conditions set forth in this Agreement, on the
Closing Date the Company shall issue and sell to the Investor, and the Investor
shall purchase from the Company, the Shares and the Warrant.  The
Closing shall take place at the offices of Company Counsel, located at Russ
Building, 235 Montgomery Street, 17th floor, San Francisco, California 94104, on
the Closing Date or at such other location or time as the parties may
agree.

     

    2.2          Closing
Deliveries.

     

    (a)          At
the Closing, the Company shall deliver or cause to be delivered to the Investor
the following (the “Company
Deliverables”):

     

    (i)           a
certificate evidencing the number of Shares set forth on the Investor’s
signature page hereto, registered in the name of the Investor;


    
      
         


      

      
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    (ii)          the
Warrant, registered in the name of the Investor and duly executed by the
Company

     

    (iii)         the
Investor Rights Agreement, duly executed by the Company;

     

    (iv)         evidence
satisfactory to the Investor of the appointment of the Investor Directors to the
board of directors of the Company effective immediately after the
Closing;

     

    (v)          a
separate indemnification agreement in form and substance to be reasonably agreed
to by the Company and the Investor, each duly executed by the Company, with each
of the Investor’s nominees to the board of directors of the Company pursuant to
the Investor Rights Agreement, which indemnification agreement shall become
effective upon such nominee becoming a member of the board of directors of the
Company;

     

    (vi)         the
legal opinion of Company Counsel, in the form attached hereto as Exhibit C, addressed
to the Investor; and

     

    (vii)        a
certificate, executed on behalf of the Company by its Secretary, dated as of the
Closing Date, certifying the resolutions adopted by the board of directors of
the Company approving the Transactions and the issuance of the Shares and the
Warrant, certifying the then current versions of the Articles of Incorporation
and Bylaws of the Company and certifying as to the signatures and authority of
persons signing the Transaction Documents and related documents on behalf of the
Company.

     

    (b)          At
the Closing, the Investor shall deliver or cause to be delivered (i) the
Investor Rights Agreement, duly signed by the Investor, and (ii) the Investment
Amount, in United States dollars and in immediately available funds, by wire
transfer to an account designated in writing by the Company for such
purpose.

     

    2.3          Adjustments to Number of
Shares and/or Per Share Price. The number of Shares issued by the Company
to the Investor and/or the Per Share Purchase Price, shall be adjusted
appropriately to reflect the effect of any stock split, reverse stock split,
stock dividend (including any dividend or distribution of securities convertible
into Common Stock), extraordinary dividends, reorganization, recapitalization,
reclassification, combination, exchange of shares or other like change with
respect to Common Stock occurring on or after the date hereof and prior to the
Closing.

     

    ARTICLE
3.

    REPRESENTATIONS
AND WARRANTIES

     

    3.1          Representations and
Warranties of the Company.  The Company hereby represents and
warrants to the Investor that, as of the date hereof and as of the Closing
Date:

     

    (a)          Subsidiaries.  The
Company has no direct or indirect Subsidiaries other than as listed on Schedule 3.1(a)
hereto.  Except as disclosed on Schedule 3.1(a), the
Company owns, directly or indirectly, all of the capital stock of each
Subsidiary free and clear of any and all Liens, and all the issued and
outstanding shares of capital stock of each Subsidiary are validly issued and
are fully paid, non-assessable and free of preemptive and similar
rights.  Other than as listed on Schedule 3.1(a),
neither the Company nor any of its Subsidiaries owns, directly or indirectly,
capital stock or other equity interests of any other Person.


    
      
         


      

      
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    (b)          Organization and
Qualification.  The Company and each Subsidiary are duly
incorporated or otherwise organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or organization (as
applicable), with the requisite power and authority to own and use its
properties and assets and to carry on its business as such business is described
in the SEC Reports.  Neither the Company nor any Subsidiary is in
violation of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents.  The Company and each Subsidiary are duly qualified to
conduct their respective businesses and are in good standing as a foreign
corporation or other entity in each jurisdiction in which the nature of the
business conducted or property owned by it makes such qualification necessary,
except where the failure to be so qualified or in good standing, as the case may
be, would not, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect.  True, correct and complete
copies of the Company’s Articles of Incorporation and Bylaws have previously
been made available to the Investor.

     

    (c)          Authorization;
Enforcement.  The board of directors of the Company (at a
meeting duly called and held) has approved this Agreement, the other Transaction
Documents, the execution, delivery and performance of this Agreement and the
consummation of the Transactions.  The Company has the requisite
corporate power and authority to enter into and to consummate the Transactions
contemplated by each of the Transaction Documents and otherwise to perform its
obligations thereunder.  The execution and delivery of each of the
Transaction Documents by the Company and the consummation by it of the
Transactions have been duly authorized by all necessary action on the part of
the Company and no further action is required by the Company or any Subsidiary
in connection therewith.  Each Transaction Document has been, or upon
the Closing will have been, validly executed and delivered by the Company and
constitutes or, upon the Closing will constitute, the valid and binding
obligation of the Company enforceable against the Company in accordance with its
terms, except as such enforceability may be limited by applicable bankruptcy,
insolvency, or similar laws relating to, or affecting generally the enforcement
of, creditors’ rights and remedies or by other equitable principles of general
application.  Without limiting the generality of the foregoing, no
approval by the stockholders of the Company is required in connection with this
Agreement, any of the Transaction Documents, the performance by the Company of
its obligations hereunder and thereunder, or the consummation by the Company of
the transactions contemplated hereby and thereby.

     

    (d)          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 or any Subsidiary’s certificate or
articles of incorporation, bylaws or other organizational or charter documents,
or (ii) conflict with, breach, violate 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 obligations under, or the loss
of any benefit under any agreement, mortgage, deed of trust, permit, concession,
franchise, right, license, 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 result in the creation of any
Liens upon any of the properties or assets of the Company or any of its
Subsidiaries, (iii) conflict with or result in a violation of any Law, or other
restriction of any court or Governmental Authority to which the Company or a
Subsidiary is subject (including, without limitation, federal and state
securities Laws), or by which any property or asset of the Company or a
Subsidiary is bound or affected; except in the case of each of clauses (ii) and
(iii), such as would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.


    
      
         


      

      
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    (e)          Filings, Consents and
Approvals.  Neither the Company nor any Subsidiary is required
to obtain any consent, waiver, authorization or order of, give any notice to, or
make any filing or registration with, any Governmental Authority or other Person
in connection with the execution, delivery and performance by the Company of the
Transaction Documents or the consummation of the Transactions, other than (i)
the filing with the Commission of one or more Registration Statements in
accordance with the requirements of the Investor Rights Agreement, (ii) filings
required by state securities laws, (iii) the filing of a Notice of Sale of
Securities on Form D with the Commission under Regulation D of the Securities
Act, (iv) the filings required in accordance with Section 4.5 hereof,
and (v) those that have been made or obtained prior to the date of this
Agreement.

     

    (f)           Issuance of the
Securities.  The Securities have been duly authorized for
issuance and sale to the Investor and, when issued and paid for in accordance
with the Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens.  The Company has reserved
from its duly authorized capital stock the maximum number of shares of Common
Stock issuable, as of the Closing Date, pursuant to this Agreement and the
Warrants in order to issue the Shares and the Warrant Shares.

     

    (g)          Capitalization.

     

    (i)           Schedule 3.1(g) sets
forth, as of the date of this Agreement: (A) the authorized capital stock of the
Company; (B) the number of shares and type of all issued and outstanding capital
stock of the Company; (C) the number of shares of capital stock issuable and
reserved for issuance under the Company’s various option and incentive plans;
and (D) the
number of shares of capital stock issuable and reserved for issuance pursuant to
securities (other than the Warrant) (the “Company Awards”) exercisable
for, or convertible into or exchangeable for any shares of capital stock of the
Company.  Schedule 3.1(g)
accurately sets forth, with respect to each Company Award outstanding (whether
vested or unvested), as of the date of this Agreement: (i) the total number of
shares of Common Stock that are subject to Company Awards and the number of
shares of Common Stock with respect to which such Company Awards are immediately
exercisable; (ii) if applicable to the Company Awards, the exercise price per
share of Common Stock purchasable under such Company Award and the vesting
schedule and expiration date for such Company Award; and (iii) the number of
such Company Awards that will be exercisable on the Closing Date, either by
reason of the Company Award vesting schedule, or by reason of the
Transactions.  All outstanding equity interests of the Company and its
Subsidiaries are duly authorized, validly issued, fully paid and
nonassessable.


    
      
         


      

      
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    (ii)          Except
as specified in Schedule 3.1(g)(ii),
no securities of the Company are entitled to preemptive or similar rights, and
no Person has any right of first refusal, preemptive right, right of
participation, or any similar right to participate in the
Transactions.

     

    (iii)         Except
as set forth on Schedule 3.1(g)(iii),
there are no outstanding options, warrants, scrip rights to subscribe to, calls
or commitments of any character whatsoever relating to, or securities, rights or
obligations convertible into or 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 (A) issue, transfer or sell any shares of
capital stock or other equity interests of the Company, or securities or rights
convertible into or exchangeable for such shares or equity interests (including,
without limitation, any stockholder purchase rights or “poison pill” or similar
arrangements), (B) grant, extend or enter into any such subscription, option,
warrant, call, convertible securities or other similar right, agreement or
arrangement, or (C) redeem or otherwise acquire any such shares of capital stock
or equity interests.

     

    (iv)         The
issue and sale of the Securities will not, immediately or with the passage of
time, obligate the Company to issue shares of Common Stock, Common Stock
Equivalents or other securities or provide any contractual benefit or protection
to any Person (other than the Investor) and will not result in a right of any
holder of Company securities to adjust the exercise, conversion, exchange or
reset price of any outstanding security of the Company or any of its
Subsidiaries.

     

    (v)          The
Company has no outstanding bonds, debentures, notes or other obligations, the
holders of which have the right to vote (or which are convertible into or
exercisable for securities having the right to vote) with the stockholders of
the Company on any matter.

     

    (vi)         Except
as disclosed in the SEC Reports, there are no voting trusts or other agreements
or understandings to which the Company is a party with respect to the voting of
the capital stock or other equity interest of the Company.

     

    (h)          SEC Reports; Financial
Statements.  Except as set forth on Schedule 3.1(h),
the Company has filed all reports required to be filed by it with the Commission
under the Securities Act and the Exchange Act, including pursuant to Section
13(a) or 15(d) thereof, for the twelve months preceding the date hereof
(excluding disclosures of risks included in any forward-looking statement
disclaimers or other statements that are similarly non-specific and are
predictive and forward-looking in nature) (the foregoing materials being,
collectively referred to herein as the “SEC Reports” and, together
with the Schedules to this Agreement (if any), the “Disclosure Materials”) on a
timely basis or has timely filed a valid extension of such time of filing and
has filed any such SEC Reports prior to the expiration of any such
extension.  As of their respective dates, the SEC Reports complied in
all material respects with the requirements of the Securities Act and the
Exchange Act and the rules and regulations of the Commission promulgated
thereunder, and none of the SEC Reports, when filed, contained any untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading.  The
financial statements of the Company included or incorporated by reference in the
SEC Reports have been prepared from and are in accordance with the books and
records of the Company and its Subsidiaries in all material respects, 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 GAAP applied on a consistent basis during the periods involved, except as
may be otherwise specified in such financial statements or the notes thereto,
and 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, recurring, immaterial, year-end
audit adjustments and the absence of footnotes therefrom.  Except as
set forth on Schedule 3.1(h),
neither the Company nor any of its Subsidiaries has any liabilities or
obligations of any nature (absolute, accrued, contingent or otherwise) for which
reasonable reserves have not been established in accordance with GAAP in the
financial statements described above, except for liabilities that have arisen
since December 31, 2009 in the ordinary and usual course of business and
consistent with past practice and that, individually or in the aggregate, have
not had and would not reasonably be expected to have a Material Adverse
Effect.


    
      
         


      

      
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    (i)           Press
Releases.  The press releases disseminated by the Company
during the twelve months preceding the date of this Agreement taken as a whole
do not contain any untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary in order to make the
statements therein, in light of the circumstances under which they were made and
when made, not misleading.

     

    (j)           Material
Changes.  Since the date of the latest audited financial
statements included within the SEC Reports, except as specifically disclosed in
Schedule 3.1(j)
or the SEC Reports:

     

    (i)           there
has been no event, occurrence or development that has had or that would
reasonably be expected to result in a Material Adverse Effect;

     

    (ii)          neither
the Company nor any Subsidiary has incurred any liabilities (direct, indirect,
contingent, or otherwise) other than (A) trade payables, accrued expenses and
other liabilities 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, which are, individually or in the aggregate,
material;

     

    (iii)         the
Company has not altered its method of accounting or the identity of its
auditors;

     

    (iv)         the
Company has not declared or made any dividend or distribution of cash or other
property to its stockholders or purchased, redeemed or made any agreements to
purchase or redeem any shares of its capital stock;

     

    (v)          there
has been no waiver, not in the ordinary course of business, by the Company or
any of its Subsidiaries of a material right or of a material debt owed to
it;


    
      
         


      

      
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    (vi)         there
has been no material transaction entered into by the Company or any of its
Subsidiaries other than in the ordinary course of business; and

     

    (vii)        there
has been no sale, assignment, transfer, license, abandonment, loss, lapse or
other disposition of, or failure to maintain, enforce or protect, any material
Company Intellectual Property.

     

    Except
for the issuance of the Securities and the other Transactions contemplated by
the Transaction Documents, no event, liability or development has occurred or
exists with respect to the Company or any of its Subsidiaries or their
respective businesses, properties, operations or financial condition that, in
each case, is required to be disclosed by the Company under applicable
securities Laws at the time this representation is made that has not been
publicly disclosed.  Except as disclosed on Schedule 3.1(j), the
Company does not have pending before the Commission any request for confidential
treatment of information.

     

    (k)          Litigation.  There
is no Action which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Securities or (ii)
except as specifically disclosed in Schedule 3.1(k) or
the SEC Reports, would, if there were an unfavorable decision, individually or
in the aggregate, be material to the Company.  To the knowledge of the
Company, neither the Company nor any Subsidiary, nor any director or officer
thereof (in his or her capacity as such), is or has been the subject of any
Action involving a claim of violation of or liability under federal or state
securities laws or a claim of breach of fiduciary duty, except as specifically
disclosed in Schedule
3.1(k) or the SEC Reports.  There has not been, and to the
knowledge of the Company, there is not pending any investigation by the
Commission involving the Company or any current or former director or officer of
the Company (in his or her capacity as such) except as specifically disclosed in
Schedule 3.1(k)
or the SEC Reports.  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.

     

    (l)           Labor
Relations.  Except as set forth on Schedule
3.1(l):

     

    (i)           No
material labor dispute exists or, to the knowledge of the Company, is threatened
or imminent with respect to any of the employees of the Company or any
Subsidiary.

     

    (ii)          There
are no unfair labor practice charges or complaints, or representation petitions
pending or, to the Company’s knowledge, threatened before the National Labor
Relations Board or any other federal, state or local labor commission relating
to the Company’s or any of its Subsidiaries’ employees, and no such charges,
complaints or petitions have been filed against the Company within the past
three years.  Each of the Company and its Subsidiaries is, and at all
times has been, in compliance in all material respects with all applicable Laws
respecting employment (including Laws relating to citizenship classification of
employees and independent contractors) and employment practices, terms and
conditions of employment, wages and hours, and immigration and
naturalization.  Except as set forth on Schedule 3.1(l),
within the past three years, the Company has not implemented any plant closing
or layoff of employees that could result in a violation of the WARN
Act.


    
      
         


      

      
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    (m)         Compliance.  Neither
the Company nor any Subsidiary (i) is in default under or in violation of (and
no event has occurred that has not been waived that, with notice or lapse of
time or both, would result in a default by the Company or any Subsidiary under),
nor has the Company or any Subsidiary received notice of a claim that it is in
default under or that it is in violation of, any indenture, loan or credit
agreement or any other agreement or instrument to which it is a party or by
which it or any of its properties is bound (whether or not such default or
violation has been waived), (ii) is in violation of any order of any court,
arbitrator or Governmental Authority, or (iii) except as set forth on Schedule 3.1(m), is
or has been in violation of any Law in any
material respect, including without limitation all foreign, federal,
state and local laws relating to taxes, environmental protection, occupational
health and safety, product quality and safety and employment and labor matters,
except (in the case of clause (i) and (ii)
only) as would not, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect.  The Company is in
compliance in all material respects with all effective requirements of the
Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations
thereunder, that are applicable to it.

     

    (n)          Regulatory
Permits.  The Company and the Subsidiaries possess all
certificates, authorizations, permits, franchises, grants, licenses, easements,
variances, exceptions, consents, approvals, clearances, permissions,
qualifications and registrations issued by the appropriate Governmental
Authorities necessary to own, lease and operate their properties and assets or
conduct their respective businesses as described in the SEC Reports (the “Company Permits”), except
where the failure to possess such permits would not, individually or in the
aggregate, have or reasonably be expected to result in a Material Adverse
Effect, and neither the Company nor any Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such
permits.  All Company Permits are valid and in full force and effect,
except where the failure to be in full force and effect would not, individually
or in the aggregate, reasonably be expected to result in a Material Adverse
Effect. The Company is, and each of its Subsidiaries is, in compliance with the
terms and requirements of such Company Permits, except where the failure to be
in compliance would not, individually or in the aggregate, reasonably be
expected to result in a Material Adverse Effect.

     

    (o)          Environment. Except
as set forth on Schedule 3.1(o) or as
would not, individually or in the aggregate, reasonably be expected to result in
a Material Adverse Effect:

     

    (i)           The
Company and its Subsidiaries have been and are in compliance with all applicable
Environmental Laws in all material respects, including, but not limited to,
possessing all permits and other governmental authorizations required for their
operations under applicable Environmental Laws;

     

    (ii)          There
is no pending or, to the knowledge of the Company, threatened Action pursuant to
any Environmental Law against the Company or any of its Subsidiaries. To the
Company’s knowledge, neither the Company nor any of its Subsidiaries has
received written notice from any person, including but not limited to any
Governmental Authority, alleging that the Company or any of its Subsidiaries has
been or is in violation of any applicable Environmental Law or otherwise may be
liable under any applicable Environmental Law, which violation or liability is
unresolved. Neither the Company nor any of its Subsidiaries is a party or
subject to any material order of a Governmental Authority pursuant to
Environmental Law;


    
      
         


      

      
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    (iii)         With
respect to real property that is currently owned, leased or operated by the
Company or any of its Subsidiaries, or was formerly owned, leased or operated by
the Company or any of its Subsidiaries, (i) there have been no releases, spills
or discharges of Hazardous Materials on or, to the knowledge of the Company,
underneath, or migrating to or from any of such real property, and (ii) there is
no storage or disposal of Hazardous Materials at any such real property, that in
either case would reasonably be expected to result in an obligation to remediate
such environmental condition pursuant to applicable Environmental Law in effect
as of the Closing Date or result in liability pursuant to applicable
Environmental Law in effect as of the Closing Date with respect to remediation
conducted by other Persons;

     

    (iv)         The
Company and its Subsidiaries have not, either expressly or by operation of law,
assumed, undertaken, or provided an indemnity with respect to any material
liability (contingent or otherwise) or material investigatory, remedial or
corrective obligation of any other Person relating to Environmental
Laws.

     

    (p)          Title to
Assets.  Except as set forth on Schedule 3.1(p), the
Company and the Subsidiaries have valid land use rights for all real property
that is material to their respective businesses and good and marketable title in
all personal property that is material to their respective businesses, in each
case free and clear of all Liens, except for Permitted Liens.  Any
real property and facilities held under lease by the Company and the
Subsidiaries are held by them under valid, subsisting and enforceable leases of
which the Company and the Subsidiaries are in compliance.  The SEC
Reports set forth the address and description of each Owned Real
Property.  Except as set forth on Schedule 3.1(p), with
respect to each Owned Real Property: (i) the Company or one of its Subsidiaries
(as the case may be) has good and marketable indefeasible fee simple title to
such Owned Real Property, free and clear of all Liens except Permitted Liens,
(ii) except as set forth in the SEC Reports, neither the Company nor any of its
Subsidiaries has leased or otherwise granted to any Person the right to use or
occupy such Owned Real Property or any portion thereof and (iii) there are no
outstanding options, rights of first offer or rights of first refusal to
purchase such Owned Real Property or any portion thereof or interest
therein.  Neither the Company nor any of its Subsidiaries is a party
to any agreement or option to purchase any real property or interest
therein.

     

    (q)          Intellectual
Property.

     

    (i)           Schedule 3.1(q)(i)
sets forth a correct and complete list of all of the following that are owned,
used or held for use by the Company or any of its Subsidiaries in the operation
of their respective businesses as currently conducted (identifying for each, as
applicable, the owner, jurisdiction and the issuance, registration and
application numbers and filing, registration and issuance dates): (i) all
patented or registered Intellectual Property, including all Internet domain name
registrations; (ii) all pending patent applications or other applications for
registration of any Intellectual Property; (iii) all trade or corporate names
and all material unregistered trademarks and service marks; and (iv) all
proprietary software owned or developed by the Company or any of its
Subsidiaries.  The Company Intellectual Property is currently in
compliance with all legal requirements (including timely filings, proofs,
prosecution, disclosures and payments of fees) and is valid, subsisting and
enforceable and no loss of any of the material Company Intellectual Property
owned by the Company or any Subsidiary is reasonably foreseeable (except for
patents upon the expiration of their statutory term).


    
      
         


      

      
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    (ii)          Except
as set forth on Schedule 3.1(q)(ii),
no Company Intellectual Property is now involved in, or has been involved in
within the past six (6) years, any cancellation, Action, opposition proceeding,
or other dispute, litigation or proceeding, and, to the Company’s knowledge, no
such action is threatened.

     

    (iii)         No
patent contained in the Company Intellectual Property is now involved in any
interference, reissue, re examination or opposition proceeding and no such
patent has been misused.

     

    (iv)         The
Company and its Subsidiaries solely own and possess all right, title and
interest in and to, or have the valid right to use pursuant to an enforceable
written license set forth on Schedule 3.1(q)(iv),
all of the Intellectual Property necessary for, or used or held for use in, the
operation of the Company’s and each of its Subsidiaries’ respective businesses
as currently conducted and/or as described in the SEC Reports (the “Company Intellectual
Property”), including with respect to the ownership, maintenance and
operation of the Company’s and its Subsidiaries’ material properties and assets,
free and clear of all Liens, adverse claims, covenants not to sue, and, except
as set forth on Schedule 3.1(q)(iv),
licenses granted to any other Person and/or obligations to license any such
Intellectual Property.  The Company and/or its Subsidiaries have a
valid and enforceable written license to use all third party Intellectual
Property necessary for, or used or held for use in, the operation of the
respective businesses of the Company and its Subsidiaries.

     

    (v)          The
Company and its Subsidiaries have not infringed, misappropriated or otherwise
impaired or conflicted with, and the conduct of the Company’s and its
Subsidiaries’ businesses as currently conducted does not infringe,
misappropriate or otherwise impair or conflict with (collectively, “Infringe”) any Intellectual
Property or other rights of any third party.  To the knowledge of the
Company, the Company Intellectual Property is not being Infringed by any third
party.  There is no litigation, claim or order that was either made
within the past six (6) years or is presently pending or outstanding or, to the
knowledge of the Company, threatened or imminent, that alleges that the conduct
of the respective businesses of the Company or of any of its Subsidiaries
Infringes any Intellectual Property, or that seeks to limit or challenge or that
concerns the ownership, use, patentability, registrability, validity or
enforceability of any Company Intellectual Property and the Company’s and its
Subsidiaries’ use of any Intellectual Property. No Company Intellectual Property
is subject to any outstanding settlement, consent or order restricting the use
thereof (including any judgment, notice, ruling, injunction, assessment, award,
decree or writ of any Governmental Authority).

     

    (vi)         The
Company and its Subsidiaries have taken all actions necessary, and all actions
common in the industry, to maintain, protect, and enforce all material Company
Intellectual Property, including the secrecy, confidentiality and value of trade
secrets and other confidential information.  All employees,
consultants and independent contractors of the Company or any Subsidiary who
have had access to Confidential Information and/or who have been involved in, or
have contributed to, the creation or development of any Company Intellectual
Property have executed a written agreement to maintain the confidentiality of
such Confidential Information and to assign to the Company or such Subsidiary
all Intellectual Property created or developed by such Person in the course of
such Person’s employment or other engagement with the Company and has executed
appropriate agreements that are substantially consistent with the Company’s
standard forms thereof.  Except under written confidentiality
obligations, there has been no disclosure of any of the Company’s or its
Subsidiaries’ Confidential Information to any third party.


    
      
         


      

      
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    (vii)        Except
as set forth on Schedule 3.1(q)(vii),
either the Company nor any of its Subsidiaries has created or developed any
Intellectual Property with the use of any third party funding, personnel or
facilities or through the use of any other third party resources (including any
resources of any university or Governmental Authority).  No university
or Governmental Authority has any right, title or interest (including any option
or license) in or to any Company Intellectual Property.  Other than as
set out in Schedule
3.1(q)(vii), neither the Company nor any of its Subsidiaries is a party
to, or otherwise subject to, any contracts, commitments, understandings or
arrangements with any university or Governmental Authority.

     

    (r)           Taxes.

     

    (i)           Except
as set forth on Schedule 3.1(r) or as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (i) all Tax Returns required to be filed by the Company
and each of its Subsidiaries in any jurisdiction have been timely filed, other
than those filings being contested in good faith; (ii) all Taxes due pursuant to
such Tax Returns or pursuant to any assessment received by the Company or any of
its Subsidiaries have been paid, other than those being contested in good faith
and for which adequate reserves in accordance with GAAP have been provided; and
(iii) all such Tax Returns are true, correct and complete in all
respects.

     

    (ii)          Except
as set forth on Schedule 3.1(r) or as
would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect: (i) there are no disputes pending, or claims asserted,
for Taxes or assessments upon the Company or any of its Subsidiaries for which
the Company does not have reserves that are adequate under GAAP; (ii) neither
the Company nor any of its Subsidiaries is (A) a party to or is bound by any Tax
sharing, allocation or indemnification agreement or arrangement (other than such
an agreement or arrangement exclusively between or among the Company and its
Subsidiaries) or (B) has any liability for the Taxes of any Person (other than
the Company or any of its Subsidiaries) under Treasury Regulation Section
1.1502-6 (or any similar provision of state, local or foreign law); and (iii)
neither the Company nor any of its Subsidiaries has participated in a “listed
transaction” within the meaning of Treasury Regulation Section
1.6011-4(b)(2).

     

    (s)          Employee
Benefits.

     

    (i)           All
“employee benefit plans”, as defined in Section 3(3) of the Employee Retirement
Income Security Act of 1974, as amended (“ERISA”), as to which the
Company or any entity which, with the Company, would be deemed to be a single
employer under Section 414(b), (c), (m) or (o) of the Code (collectively, the
“Company Group”), may
have any liability and that are subject to Title IV of ERISA or Section 302 of
ERISA or Section 412 of the Code shall be referred to herein as “Company Plans”.  No
liability has been incurred under Title IV of ERISA, Section 302 of ERISA or
Section 412 of the Code that would reasonably be expected to have a Material
Adverse Effect, and, to the knowledge of the Company, no facts exist or events
have occurred that would reasonably be expected to result in any such liability
that would reasonably be expected to have a Material Adverse Effect. There has
been no adverse change in the funded status of the Company Plans and each other
pension and other post-employment benefit plans (as such terms are used in
Statement of Financial Accounting Standards No. 158) with respect to which the
Company may have any liability, considered individually and in the aggregate,
since December 31, 2009, that would reasonably be expected to have a Material
Adverse Effect.


    
      
         


      

      
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    (ii)          Except
as, individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect, the consummation of the transactions contemplated
hereby will not result in an increase in the amount of, or acceleration in the
timing of payment of vesting of, any compensation payable or awarded by the
Company or any of its Subsidiaries to any of its or their employees under any
employment agreements, plans or programs of the Company or any of its
Subsidiaries. Except as disclosed in the SEC Reports, no employee compensation
or other employment-related liabilities have been incurred that would reasonably
be expected to result in a Material Adverse Effect and no facts exists or events
have occurred that would reasonably be expected to result in any such liability
that would reasonably be expected to have a Material Adverse
Effect.

     

    (t)           Insurance.  The
Company and the Subsidiaries are insured by insurers of recognized financial
responsibility against such losses and risks and in such amounts as are
reasonable and customary in the businesses in which the Company and the
Subsidiaries are engaged and for the properties owned or leased by each of the
Company or its Subsidiaries.  Neither the Company nor any Subsidiary
has any reason to believe that it will not be able to renew its and the
Subsidiaries’ existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers when such coverage
expires.

     

    (u)          Transactions With Affiliates
and Employees.  Except as set forth on Schedule 3.1(u)
or in the SEC Reports, none of the officers or directors, employees or
significant stockholders of the Company is presently a party to any transaction
with the Company or any Subsidiary (other than for services as employees,
officers and directors), including any contract, agreement or other arrangement
providing for the furnishing of services to or by, providing for rental of real
or personal property to or from, or otherwise requiring payments to or from any
officer, director, employee or such stockholder or, to the knowledge of the
Company, any entity in which any officer, director, or any such employee has a
substantial interest or is an officer, director, trustee or
partner.

     

    (v)          Internal Accounting
Controls.  The Company and the Subsidiaries maintain a system
of internal accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with GAAP and to maintain
asset accountability, (iii) access to assets is permitted only in accordance
with management’s general or specific authorization, and (iv) the recorded
accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any
differences.  The Company has established and maintains disclosure
controls and procedures (as defined in Exchange Act Rules 13a-15(e) and
15d-15(e)) and designed such disclosure controls and procedures to ensure that
material information relating to the Company, including its Subsidiaries, is
made known to the Company’s chief executive officer and chief financial officer
by others within those entities, particularly during the period in which the
Company’s Form 10-K or 10-Q, as the case may be, is being
prepared.  The Company’s certifying officers have evaluated the
effectiveness of the Company’s controls and procedures in accordance with Item
307 of Regulation S-K under the Exchange Act for the Company’s most recently
ended fiscal quarter or fiscal year-end (such date, the “Evaluation
Date”).  The Company presented in its most recently filed Form
10-K or Form 10-Q the conclusions of the certifying officers about the
effectiveness of the disclosure controls and procedures based on their
evaluations as of the Evaluation Date.  Since the Evaluation Date,
there have been no significant changes in the Company’s internal controls (as
such term is defined in Item 308(c) of Regulation S-K under the Exchange Act)
or, to the knowledge of the Company, in other factors that would reasonably be
expected to significantly affect the Company’s internal
controls.


    
      
         


      

      
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    (w)         Solvency.  Upon
consummation of the Transactions, (i) the Company’s fair saleable value of its
assets exceeds the amount that will be required to be paid on or in respect of
the Company’s existing debts and other liabilities (including known contingent
liabilities) as they mature, (ii) the Company’s assets do not constitute
unreasonably small capital to carry on its business as now conducted and as
proposed to be conducted including its capital needs taking into account the
particular capital requirements of the business conducted by the Company, and
projected capital requirements and capital availability thereof, and (iii) the
current cash flow of the Company, together with the proceeds the Company would
receive, were it to liquidate all of its assets, after taking into account all
anticipated uses of the cash, would be sufficient to pay all amounts on or in
respect of its debt when such amounts are required to be paid.  Except
as set forth on Schedule 3.1(w), the
Company does not intend to incur debts beyond its ability to pay such debts as
they mature (taking into account the timing and amounts of cash to be payable on
or in respect of its debt).

     

    (x)           Certain
Fees.  Except for fees payable to Roth Capital Partners, LLC or
any of the Persons listed in Schedule 3.1(x)
(collectively, the “Placement
Agent”) in connection with the Transactions, no brokerage or finder’s
fees or commissions are or will be payable by the Company or any Subsidiary to
any broker, financial advisor or consultant, finder, placement agent, investment
banker, bank or other Person with respect to the Transactions.  The
Investor shall have no obligation with respect to any fees or with respect to
any claims made by the Placement Agent or by or on behalf of any other Person
other than the Placement Agent for fees incurred by the Company or its
Subsidiaries, that may be due in connection with the Transactions unless the
Investor shall have entered into a written agreement with such Person regarding
such fees.

     

    (y)          Certain Registration
Matters.  Assuming the accuracy of the Investor’s
representations and warranties set forth in Section 3.2, no
registration under the Securities Act is required for the offer and sale of the
Shares and Warrant and the offer of the Warrant Shares by the Company to the
Investor under the Transaction Documents.  The Company is eligible to
register the Shares, the Warrant and the Warrant Shares for resale by the
Investor under Form S-3 promulgated under the Securities Act, subject to the
restrictions imposed by the Commission with respect to the number of shares
which may be registered for resale on such form.  Except as set forth
in Schedule
3.1(y), the Company has not granted or agreed to grant to any Person,
other than the Investor pursuant to the Investor Rights Agreement, any rights
(including “piggy-back” registration rights) to have any securities of the
Company registered with the Commission or any other Governmental Authority that
have not been satisfied through an effective registration statement or by waiver
of such rights to the extent specified in Schedule
3.1(y).


    
      
         


      

      
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    (z)           Government Bids and
Contracts.

     

    (i)           Schedule 3.1(z)(i)
sets forth a current, complete and accurate list of all Government Contracts
that are currently active or have been active within the past three (3) years.
 Unless listed on Schedule 3.1(z)(i) as
being “closed,” each Government Contract listed on Schedule 3.1(z)(i) is
in full force and effect and constitutes a legal, valid and binding agreement,
enforceable in accordance with its terms.  Schedule 3.1(z)(i)
sets forth a current, accurate and complete list of each of the outstanding
Government Bids submitted within the past three (3) years for which no notice of
award decision has been received as of the date hereof by the Company or any of
its Subsidiaries.

     

    (ii)          Schedule (z)(ii) sets
forth a current, complete and accurate list of all Government Assistance
Agreements that are currently active or have been active within the past three
(3) years.

     

    (iii)         Except
as set forth on Schedule 3.1(z)(iii),
with respect to each Government Contract, Government Bid and Government
Assistance Agreement: (A) the Company has complied in all material respects with
all applicable requirements, terms and conditions; all invoices and claims for
payment, reimbursement or adjustment and all representations and certifications
were current, accurate and complete in all material respects as of their
respective submission dates; (B) no written notice has been received by the
Company alleging that the Company, or any director, officer or employee thereof,
is or was in material, uncured breach or violation of any applicable Law,
contractual, regulatory or administrative requirement; no written notice of
termination, cure notice, or show-cause notice or written assertion that any
invoice or claim for payment, reimbursement or adjustment was false or improper
has been received by the Company; (C) all pricing discounts and rebates have
been reported to and credited to Governmental Authorities in compliance with all
applicable requirements in all material respects; (D) there are no outstanding
material claims or disputes between the Company and any Governmental Authority;
(E) neither the Company nor any Subsidiary has made any assignment of revenues
or anticipated revenues; and (F) the Company has maintained systems of internal
controls that are, and have been, in compliance with all requirements in all
material respects including, without limitation, government cost accounting
requirements.

     

    (iv)         Except
as set forth on Schedule 3.1(z)(iv),
the Company and its Subsidiaries (and, to the knowledge of the Company, their
respective directors, officers, employees, agents or consultants), have not,
during the past three (3) years: (A) with respect to any Government Contract,
Government Bid or Government Assistance Agreement, had access to confidential or
non-public information to which they were not lawfully entitled; (B) violated
any applicable Law associated with the employment of (or discussions concerning
possible employment with) current or former officials or employees of a
Governmental Authority; (C) with respect to any Government Contract, Government
Bid or Government Assistance Agreement, been under investigation, indictment or
audit by any Governmental Authority; (D) with respect to any Government Contract
Government Bid or Government Assistance Agreement, been requested to provide
information by subpoena or under threat of legal or administrative penalty; (E)
with respect to any Government Contract, Government Bid or Government Assistance
Agreement, conducted or initiated any investigation or made any disclosure to a
Governmental Authority with respect to any alleged irregularity, misstatement,
non-compliance or false claim; been debarred, suspended, deemed non-responsible
or otherwise excluded from participation in the award of a Government Contract
or of a Government Assistance Agreement, nor, to the knowledge of the Company,
are they the subject of any pending debarment, suspension or exclusion
proceeding; (F) provided, offered, solicited or accepted any payment, kickback,
bribe, contribution, gift, gratuity, entertainment, benefit or anything of value
in violation of applicable Law; or (G) made any payments or expenditures
relating to political activity in violation of applicable Law.

     


    
      
         


      

      
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    (v)          The
Company and its predecessors have (A) taken all reasonable steps to protect
rights in and to all technical data, computer software and other intellectual
property developed in connection with the Government Contracts and Government
Assistance Agreements, and (B) complied in all material respects with all
applicable Laws, regulations and contractual and administrative requirements
relating to the placement of legends or restrictive markings on all technical
data, computer software and other intellectual property developed in connection
with a Government Contract and delivered or otherwise provided to a Governmental
Authority.

     

    (aa)        Investment
Company.  The Company is not, and is not an Affiliate of, and
neither immediately following the Closing, nor upon the receipt of the exercise
price for the Warrant (based upon the exercise price at Closing), will have
become, an “investment company” within the meaning of the Investment Company Act
of 1940, as amended.

     

    (bb)        Application of Takeover
Protections.  The Company has taken all necessary action, if
any, in order to render inapplicable any control share acquisition, “fair
price,” “moratorium,” “interested stockholder,” business combination, poison
pill (including any distribution under a rights agreement) anti-takeover or
other similar provision under the Company’s Articles of Incorporation or the
laws of its state of incorporation that is or would become applicable to the
Investor as a result of the Investor and the Company fulfilling their
obligations or exercising their rights under the Transaction Documents,
including without limitation the Company’s issuance of the Securities and the
Investor’s ownership of the Securities.

     

    (cc)         Consultation with
Auditors.  The Company has consulted its independent auditors
concerning the accounting treatment of the Transactions, and in connection
therewith has furnished such auditors complete copies of the Transaction
Documents.

     

    (dd)         Accountants.  There
are no disagreements of any kind presently existing between the Company and the
accountants formerly or presently employed or engaged by the Company, that
would, individually or in the aggregate, have or reasonably be expected to
result in, a Material Adverse Effect.


    
      
         


      

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

     

    (ff)          PFIC.  Neither
the Company nor any Subsidiary is or intends to become a “passive foreign
investment company” within the meaning of Section 1297 of the U.S. Internal
Revenue Code of 1986, as amended.

     

    (gg)        OFAC. Neither the
Company nor any Subsidiary nor, to the knowledge of the Company, any director,
officer, agent, employee, Affiliate or Person acting on behalf of the Company or
any Subsidiary is currently subject to any U.S. sanctions administered by the
Office of Foreign Assets Control of the U.S. Treasury Department (“OFAC”); and the Company will
not directly or indirectly use the proceeds of the sale of the Securities, or
lend, contribute or otherwise make available such proceeds to any Subsidiary,
joint venture partner or other Person or entity, towards any sales or operations
in Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC or
for the purpose of financing the activities of any Person currently subject to
any U.S. sanctions administered by OFAC.

     

    (hh)        Money Laundering
Laws. The business of each of the Company and each Subsidiary are and
have been conducted at all times in compliance with the money laundering
statutes of applicable jurisdictions, the rules and regulations thereunder and
any related or similar rules, regulations or guidelines, issued, administered or
enforced by any applicable governmental agency (collectively, the “Money Laundering Laws”) and no
Action, suit or Proceeding by or before any court or Governmental Authority or
any arbitrator involving the Company and/or any Subsidiary with respect to the
Money Laundering Laws is pending or, to the knowledge of the Company,
threatened.

     

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


    
      
         


      

      
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    (jj)           Disclosure.  To
the knowledge of the Company, neither it nor any Person acting on its behalf has
provided the Investor or its agents or counsel with any information that the
Company believes constitutes material, non-public information concerning the
Company, the Subsidiaries or their respective businesses, except insofar as (A)
the Investor, its agents and counsel, as applicable, has executed a written
agreement regarding the confidentiality and use of such information and (B) the
existence and terms of the proposed Transactions may constitute such
information. The Company understands and confirms that the Investor will rely on
the foregoing representations and covenants in effecting transactions in
securities of the Company.  All disclosure provided to the Investor
regarding the Company, the Subsidiaries or their respective businesses and the
Transactions, furnished by or on behalf of the Company (including the Company’s
representations and warranties set forth in this Agreement and any business plan
or investor presentation provided by the Company or any Person acting on the
Company’s behalf) are true and correct in all material respects and do not
contain any untrue statement of a material fact or omit to state any material
fact necessary in order to make the statements made therein, in light of the
circumstances under which they were made, not misleading.

     

    The
Investor acknowledges and agrees that the Company makes no representations or
warranties with respect to the Transactions other than those specifically set
forth in this Section
3.1.

     

    3.2          Representations and
Warranties of the Investor.  The Investor hereby represents and
warrants to the Company as follows:

     

    (a)          Organization;
Authority.  The Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with the requisite corporate or partnership power and authority to
enter into and to consummate the Transactions and otherwise to carry out its
obligations thereunder. The execution, delivery and performance by the Investor
of the transactions contemplated by this Agreement has been duly authorized by
all necessary corporate or, if the Investor is not a corporation, such
partnership, limited liability company or other applicable like action, on the
part of the Investor.  Each of this Agreement and the Investor Rights
Agreement has been duly executed by the  Investor, and when delivered
by the Investor in accordance with the terms hereof, will constitute the valid
and legally binding obligation of the Investor, enforceable against it in
accordance with its terms, except as such enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws relating to, or affecting
generally the enforcement of, creditors’ rights and remedies or by other
equitable principles of general application.

     

    (b)          Investment
Intent.  The Investor is acquiring the Securities for its own
account for investment purposes only and not with a view to or for distributing
or reselling such Securities or any part thereof, without prejudice, however, to
the Investor’s right at all times to sell or otherwise dispose of all or any
part of such Securities in compliance with applicable federal and state
securities laws.  Subject to the immediately preceding sentence,
nothing contained herein shall be deemed a representation or warranty by the
Investor to hold the Securities for any period of time.  The Investor
is acquiring the Securities hereunder in the ordinary course of its business.
The Investor does not have any agreement or understanding, directly or
indirectly, with any Person to distribute any of the
Securities.


    
      
         


      

      
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    (c)          Investor
Status.  At the time the Investor was offered the Securities,
it was, and at the date hereof it is, and on each date on which it exercises
Warrants it will be, an “accredited investor” as defined in Rule 501(a) under
the Securities Act.  The Investor is not a registered broker-dealer
under Section 15 of the Exchange Act.  The Investor has such
experience in business and financial matters that it is capable of evaluating
the merits and risks of an investment in the Securities.  The Investor
acknowledges that an investment in the Securities involves a high degree of
risk.

     

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

     

    (e)          Access to
Information.  The Investor acknowledges that it has reviewed
the Disclosure Materials and has been afforded (i) the opportunity to ask such
questions as it has deemed necessary of, and to receive answers from,
representatives of the Company concerning the terms and conditions of the
offering of the Securities and the merits and risks of investing in the
Securities; (ii) access to information about the Company and the Subsidiaries
and their respective financial condition, results of operations, business,
properties, management and prospects sufficient to enable it to evaluate its
investment; and (iii) the opportunity to obtain such additional information that
the Company possesses or can acquire without unreasonable effort or expense that
is necessary to make an informed investment decision with respect to the
investment.  Neither such inquiries nor any other investigation
conducted by or on behalf of the Investor or its representatives or counsel
shall modify, amend or affect the Investor’s right to rely on the truth,
accuracy and completeness of the Disclosure Materials and the Company’s
representations and warranties contained in the Transaction
Documents.

     

    (f)           Certain Trading
Activities.  The Investor has not directly or indirectly, nor
has any Person acting on behalf of or pursuant to any understanding with the
Investor, engaged in any transactions in the securities of the Company
(including, without limitations, any Short Sales involving the Company’s
securities) since the time that the Investor was first contacted by the Company
or a Placement Agent regarding an investment in the Company.  The
Investor covenants that neither it nor any Person acting on its behalf or
pursuant to any understanding with it will engage in any transactions in the
securities of the Company (including Short Sales) prior to the time that the
transactions contemplated by this Agreement are publicly disclosed.

     

    (g)          Independent Investment
Decision.  The Investor has independently evaluated the merits
of its decision to purchase Securities pursuant to the Transaction
Documents.  The Investor has not relied on the business or legal
advice of the Company or Roth Capital Partners, LLC or any other Placement Agent
or any of their respective agents, counsel or Affiliates in making its
investment decision hereunder.

     

    The
Company acknowledges and agrees that the Investor makes no representations or
warranties with respect to the Transactions other than those specifically set
forth in this Section
3.2.


    
      
         


      

      
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    ARTICLE
4.

    OTHER
AGREEMENTS OF THE PARTIES

     

    4.1         (a)           Securities
may only be disposed of in compliance with state and federal securities
Laws.  In connection with any transfer of the Securities other than
pursuant to an effective registration statement, to the Company, to an Affiliate
of the Investor or in connection with a pledge as contemplated in Section 4.1(b), the
Company may require the transferor thereof to provide to the Company an opinion
of counsel selected by the transferor, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such
transfer does not require registration of such transferred Securities under the
Securities Act.

     

    (b)          Certificates
evidencing Securities (as defined in Section 4.1(c)) will
contain the following legend, until such time as they are not required under
Section
4.1(c):

     

    [NEITHER
THIS SECURITY NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THIS SECURITY HAVE
BEEN REGISTERED] / [THIS SECURITY HAS NOT BEEN REGISTERED] WITH THE SECURITIES
AND EXCHANGE COMMISSION OR THE SECURITIES COMMISSION OF ANY STATE IN RELIANCE
UPON AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE “SECURITIES ACT”), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OR
PURSUANT TO AN AVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH
APPLICABLE STATE SECURITIES LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL TO
THE TRANSFEROR TO SUCH EFFECT, THE SUBSTANCE OF WHICH SHALL BE REASONABLY
ACCEPTABLE TO THE COMPANY.  [THIS SECURITY AND THE SECURITIES ISSUABLE
UPON EXERCISE OF THIS SECURITY] / [THIS SECURITY] MAY BE PLEDGED IN CONNECTION
WITH A BONA FIDE MARGIN ACCOUNT SECURED BY SUCH SECURITIES.

     

    The
Company acknowledges and agrees that the Investor may from time to time pledge,
and/or grant a security interest in some or all of the Securities pursuant to a
bona fide margin agreement in connection with a bona fide margin account and, if
required under the terms of such agreement or account, the Investor may transfer
pledged or secured Securities to the pledgees or secured
parties.  Such a pledge or transfer would not be subject to approval
or consent of the Company and no legal opinion of legal counsel to the pledgee,
secured party or pledgor shall be required in connection with the pledge, but
such legal opinion may be required in connection with a subsequent transfer
following default by the Investor transferee of the pledge.  No notice
shall be required of such pledge.  At the Investor’s expense, the
Company will execute and deliver such reasonable documentation as a pledgee or
secured party of Securities may reasonably request in connection with a pledge
or transfer thereof including the preparation and filing of any required
prospectus supplement under Rule 424(b)(3) of the Securities Act or other
applicable provision of the Securities Act to appropriately amend the list of
selling stockholders thereunder.  Except as otherwise provided in
Section 4.1(c),
any Securities subject to a pledge or security interest as contemplated by this
Section 4.1(b)
shall continue to bear the legend set forth in this Section 4.1(b) and be
subject to the restrictions on transfer set forth in Section
4.1(a).


    
      
         


      

      
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    (c)          Certificates
evidencing Shares and Warrant Shares shall not contain any legend (including the
legend set forth in Section 4.1(b)): (i)
while a registration statement (including the Registration Statement) covering
such Shares and Warrant Shares is then effective, or (ii) following a sale or
transfer of such Shares or Warrant Shares pursuant to Rule 144 (assuming the
transferee is not an Affiliate of the Company), or (iii) while such Shares or
Warrant Shares are eligible for sale by the selling Investor without volume
restrictions under Rule 144.  The Company agrees that following the
Effective Date or such other time as legends are no longer required to be set
forth on certificates representing Shares and Warrant Shares under this Section 4.1(c), it
will, no longer than three Trading Days following the delivery by the Investor
to the Company or the Transfer Agent of a certificate representing such Shares
or Warrant Shares containing a restrictive legend, deliver or cause to be
delivered to the Investor Shares or Warrant Shares which are free of all
restrictive and other legends.  If the Company is then eligible,
certificates for Shares and Warrant Shares subject to legend removal hereunder
shall be transmitted by the Transfer to the  Investor by crediting the
prime brokerage account of the Investor with the Depository Trust Company System
as directed by the Investor.  If the Investor shall make a sale or
transfer of Shares or Warrant Shares either (x) pursuant to Rule 144 or (y)
pursuant to a registration statement and in each case shall have delivered to
the Company or the Company’s transfer agent the certificate representing the
applicable Shares or Warrant Shares containing a restrictive legend which are
the subject of such sale or transfer and a representation letter in customary
form (the date of such sale or transfer and Shares or Warrant Share delivery
being the “Share Delivery
Date”) and (1) the Company shall fail to deliver or cause to be delivered
to the Investor a certificate representing such Shares or Warrant Shares that is
free from all restrictive or other legends by the third Trading Day following
the Share Delivery Date and (2) following such third Trading Day after the Share
Delivery Date and prior to the time such Shares or Warrant Shares are received
free from restrictive legends, the Investor, or any third party on behalf of the
Investor, purchases (in an open market transaction or otherwise) shares of
Common Stock to deliver in satisfaction of a sale by the Investor of such Shares
or Warrant Shares (a “Buy-In”), then, in addition to
any other rights available to the Investor under the Transaction Documents and
applicable law, the Company shall pay in cash to the Investor (for costs
incurred either directly by the Investor or on behalf of a third party) the
amount by which the total purchase price paid for Common Stock as a result of
the Buy-In (including brokerage commissions, if any) exceed the proceeds
received by the Investor as a result of the sale to which such Buy-In
relates.  The Investor shall provide the Company written notice
indicating the amounts payable to the Investor in respect of the
Buy-In.  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.


    
      
         


      

      
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    4.2          Furnishing of
Information.  Until the end of the Effectiveness Period (as
defined in the Investor Rights Agreement), the Company covenants to timely file
(or obtain extensions in respect thereof and file within the applicable grace
period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act.  As long as the Investor owns
Securities, if the Company is not required to file reports with the Commission
pursuant to such laws, it will prepare and furnish to the Investor and make
publicly available in accordance with Rule 144(c) such information as is
required for the Investor to sell the Securities under Rule 144.  The
Company further covenants that it will take such further action as any holder of
Securities may reasonably request, all to the extent required from time to time
to enable such Person to sell the Securities without registration under the
Securities Act within the limitation of the exemptions provided by Rule
144.

     

    4.3          Integration.  The
Company shall not, and shall use its best efforts to ensure that no Affiliate of
the Company shall, sell, offer for sale or solicit offers to buy or otherwise
negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that would be integrated with the offer or sale of the Securities in a
manner that would require the registration under the Securities Act of the sale
of the Securities to the Investor, or that would be integrated with the offer or
sale of the Securities for purposes of the rules and regulations of any Trading
Market in a manner that would require stockholder approval of the sale of the
Securities to the Investor.

     

    4.4          Subsequent
Registrations.  Other than a Registration Statement pursuant to
the Investor Rights Agreement, prior to the first to occur of (a) the Effective
Date of a Registration Statement resulting in all Registrable Securities (as
defined in the Investor Rights Agreement) being registered for resale pursuant
to one or more effective Registration Statements or (b) such time as all
Registrable Securities may be sold by the Investor without volume restrictions
pursuant to Rule 144, the Company may not file any registration statement (other
than on Form S-4 or Form S-8) with the Commission with respect to any securities
of the Company, except as specifically set forth on Schedule 6(b) to the
Investor Rights Agreement.

     

    4.5          Securities Laws Disclosure;
Publicity.  By 9:00 a.m. (New York City time) on the Trading
Day following the execution of this Agreement, and by 9:00 a.m. (New York City
time) on the Trading Day following the Closing Date, the Company shall issue
press releases disclosing the Transactions and the Closing.  On the
Trading Day following the execution of this Agreement, the Company will file a
Current Report on Form 8-K disclosing the material terms of the Transaction
Documents (and attach as exhibits thereto the Transaction Documents), and on the
Trading Day following the Closing Date the Company will file an additional
Current Report on Form 8-K to disclose the Closing.  In addition, the
Company will make such other filings and notices in the manner and time required
by the Commission and the Trading Market on which the Common Stock is listed, if
any.  Notwithstanding the foregoing, the Company shall not publicly
disclose the name of the Investor, or include the name of the Investor in any
filing with the Commission (other than a Registration Statement and any exhibits
to filings made in respect of the Transactions in accordance with periodic
filing requirements under the Exchange Act) or any regulatory agency or Trading
Market, without the prior written consent of the Investor, except to the extent
such disclosure is required by Law or Trading Market
regulations.


    
      
         


      

      
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    4.6          Indemnification of
Investor.  In addition to the indemnity provided in the
Investor Rights Agreement, the Company will indemnify and hold the Investor and
its directors, officers, stockholders, partners, employees and agents, each
Person who controls the Investor (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) and the directors, officers,
stockholders, partners, employees and agents of each such controlling person
(each, an “Investor
Party”) harmless from any and all losses, liabilities, obligations,
claims, contingencies, damages, costs and expenses, including all judgments,
amounts paid in settlements, court costs and reasonable attorneys’ fees and
costs of investigation (collectively, “Losses”) that any such
Investor Party may suffer or incur as a result of or relating to (a) any
misrepresentation, breach or inaccuracy of any representation, warranty,
covenant or agreement made by the Company in any Transaction Document, or (b)
any action instituted against an Investor Party, by any third party with respect
to any of the Transactions (unless such action is based upon a breach of the
Investor’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings the Investor may have with any
such stockholder or any violations by the Investor of state or federal
securities Laws or any conduct by the Investor which constitutes fraud or
willful misconduct).  In addition to the indemnity contained herein,
the Company will reimburse each Investor Party for its reasonable legal and
other expenses (including the cost of any investigation, preparation and travel
in connection therewith) incurred in connection therewith, as such expenses are
incurred.  Except as otherwise set forth herein, the mechanics and
procedures with respect to the rights and obligations under this Section 4.6 shall be
the same as those set forth in Section 5(a) of the
Investor Rights Agreement.

     

    4.7          Indemnification of the
Company.  In addition to the indemnity provided in the Investor
Rights Agreement, the Investor will indemnify and hold the Company and its
directors, officers, stockholders, partners, employees and agents (each, a
“Company Party”) each
Person who controls the Company (within the meaning of Section 15 of the
Securities Act and Section 20 of the Exchange Act) and the directors, officers,
stockholders, partners, employees and agents of each such controlling person
harmless from any and all Losses that any such Company Party may suffer or incur
as a result of or relating to any misrepresentation, breach or inaccuracy of any
representation, warranty, covenant or agreement made by the Investor in any
Transaction Document and any violation of federal or state securities Laws in
connection with the Transaction, or any conduct in connection with the
Transaction that constitutes fraud or willful misconduct.  In addition
to the indemnity contained herein, the Investor will reimburse each Company
Party for its reasonable legal and other expenses (including the cost of any
investigation, preparation and travel in connection therewith) incurred in
connection therewith, as such expenses are incurred.  Except as
otherwise set forth herein, the mechanics and procedures with respect to the
rights and obligations under this Section 4.7 shall be
the same as those set forth in Section 5(b) of the Investor Rights
Agreement.

     

    4.8          Non-Public
Information.  Except with regard to the Transactions, the
Company covenants and agrees that neither it nor any other Person acting on its
behalf will provide the Investor or its agents or counsel with any information
that the Company believes constitutes material non-public information, unless
prior thereto the Investor, shall have executed a written agreement regarding
the confidentiality and use of such information.  The Company
understands and confirms that the Investor shall be relying on the foregoing
representations in effecting transactions in securities of the
Company.  Notwithstanding the foregoing, the Investor Directors will
not be restricted from receiving material non-public information in connection
with their duties as directors of the Company;


    
      
         


      

      
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    4.9          Access to
Information.  From the date of this Agreement and through the
Closing upon reasonable notice, the Company shall, subject to applicable Law,
afford the Investor and its officers, employees, agents, accountants, counsel
and representatives reasonable access, during normal business hours, to the
offices, personnel, books and records of the Company.  All
confidential information furnished to a party or its advisor by a party or its
advisor in connection with the Transactions shall be subject to, and the
recipient of such information shall hold all such information in confidence in
accordance with, the provisions of the Confidentiality Agreement.

     

    4.10        Listing of Shares and
Warrant Shares.  The Company agrees, (i) if the Company applies
to have the Common Stock traded on any other Trading Market, it will include in
such application the Shares and Warrants Shares, and will take such other action
as is necessary or desirable to cause the Shares and Warrants Shares to be
listed on such other Trading Market as promptly as possible, and (ii) it will
take all action reasonably necessary to continue the listing and trading of its
Common Stock on a Trading Market and will comply in all material respects with
the Company’s reporting, filing and other obligations under the bylaws or rules
of the Trading Market.

     

    4.11        Use of
Proceeds.  The Company will use the net proceeds from the sale
of the Securities for working capital purposes and not for the satisfaction of
any portion of the Company’s debt or for the redemption of any Common Stock or
Common Stock Equivalents.

     

    4.12        Directors’ and Officers’
Insurance.  The Company shall maintain directors’ and offices’
liability insurance policy covering each Investor Director effective from the
Closing Date (or such later date as such Investor Director is appointed pursuant
to the Investor Rights Agreement) and shall purchase and maintain for a period
of not less than six years from the date of any Investor Director’s death,
resignation, retirement, disqualification or termination of term of office as
provided in the Investor Rights Agreement, a directors’ and officers’ liability
insurance tail policy for such Investor Director.

     

    4.13        Cost Accounting
Requirements.  The Company shall use reasonable best efforts to
cooperate with the Defense Contract Audit Agency and any other Governmental
Authority with respect to correcting (a) any identified deficiencies in the
Company’s estimating, accumulating, recording, segregating, reporting and
invoicing of costs under any Government Contract or Government Assistance
Agreement, or (b) any deficiencies in the Company’s internal control systems
related thereto.

     

    ARTICLE
5.

    CONDITIONS
PRECEDENT TO CLOSING

     

    5.1          Conditions Precedent to the
Obligations of the Investor to Purchase Securities.  The
obligation of the Investor to purchase Securities at the Closing is subject to
the fulfillment, to the Investor’s satisfaction, at or before the Closing, of
each of the following conditions (any of which may be waived by the
Investor):


    
      
         


      

      
        28

        
          

        

      

      
         


      

    


    (a)          Representations and
Warranties.  The representations and warranties of the Company
contained herein that are qualified as to materiality shall be true and correct
as of the date hereof and on the Closing Date, except to the extent any such
representation or warranty expressly speaks as of an earlier date, in which case
such representation or warranty shall be true and correct as of such earlier
date, and the representations and warranties of the Company contained herein not
qualified as to materiality shall be true and correct in all material respects
as of the date hereof and as of the Closing as though made on and as of such
date, except to the extent any such representation or warranty expressly speaks
as of an earlier date, in which case such representation or warranty shall be
true and correct in all material respects as of such earlier date, except that
the representations and warranties in Sections 3.1(c),
(f) and (g) shall be true and
correct in all respects as of the date hereof and the Closing Date;

     

    (b)          Performance.  The
Company shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by it at or prior to the
Closing;

     

    (c)          No
Injunction.  No statute, rule, regulation, executive order,
judgment, decree, ruling or injunction shall have been enacted, entered,
promulgated or endorsed by any Governmental Authority of competent jurisdiction
that enjoins or prohibits the consummation of any of the Transactions, and no
Action or Proceeding shall have been instituted that seeks to enjoin or prohibit
the consummation of any of the Transactions;

     

    (d)          Adverse
Changes.  Since the date of execution of this Agreement, no
event or series of events shall have occurred that has resulted in a Material
Adverse Effect;

     

    (e)          No Suspensions of Trading in
Common Stock.  Trading in the Common Stock shall not have been
suspended by the Commission or any Trading Market (except for any suspensions of
trading of not more than one Trading Day solely to permit dissemination of
material information regarding the Company) at any time since the date of
execution of this Agreement;

     

    (f)           Investor
Directors.  The Investor shall have received evidence
satisfactory to it that the Investor Directors have been duly appointed,
effective immediately following the consummation of this Transaction as
directors of the Company by the Company’s Board of Directors;

     

    (g)          Investor Rights
Agreement.  The Company shall have delivered the Investor
Rights Agreement, duly executed by the Company;

     

    (h)          No Material Adverse
Change.  Except as reflected or reserved against in the
consolidated balance sheets (or the notes thereto) of the Company and its
Subsidiaries included in the Company’s Quarterly Report on Form 10-Q for the
fiscal quarter ended September 30, 2010, filed with the Commission on November
15, 2010, there shall not have occurred a Material Adverse Effect since December
31, 2009;

     

    (i)           Company
Deliverables.  The Company shall have delivered the Company
Deliverables in accordance with Section
2.2(a).

     

    5.2          Conditions Precedent to the
Obligations of the Company to sell Securities.  The obligation
of the Company to sell Securities at the Closing is subject to the satisfaction
or waiver by the Company, at or before the Closing, of each of the following
conditions:


    
      
         


      

      
        29

        
          

        

      

      
         


      

    


    (a)          Representations and
Warranties.  The representations and warranties of the Investor
contained herein, other than the representations and warranties contained in
Sections 3.2(b),
(c), (d) and (f) (the “Investment Representations”)
shall be true and correct in all material respects as of the date when made and
as of the Closing Date as though made on and as of such date.  The
Investment Representations shall be true and correct in all respects as of the
date hereof and the Closing Date;

     

    (b)          Performance.  The
Investor shall have performed, satisfied and complied in all material respects
with all covenants, agreements and conditions required by the Transaction
Documents to be performed, satisfied or complied with by the Investor at or
prior to the Closing;

     

    (c)          No
Injunction.  No statute, rule, regulation, executive order,
decree, ruling or injunction shall have been enacted, entered, promulgated or
endorsed by any court or governmental authority of competent jurisdiction that
prohibits the consummation of any of the Transactions; and

     

    (d)          Investor
Deliverables.  The Investor shall have delivered the Investor
Rights Agreement, duly executed by the Investor.

     

    ARTICLE
6.

    MISCELLANEOUS

     

    6.1          Fees and
Expenses.  The Company shall reimburse the Investor for legal
fees and expenses incurred in connection with the negotiation, preparation,
execution, delivery and performance of the Transaction Documents up to a maximum
aggregate amount of $50,000.  Except as set forth in the immediately
preceding sentence, each party shall pay the fees and expenses of its advisers,
counsel, accountants and other experts, if any, and all other expenses incurred
by such party incident to the negotiation, preparation, execution, delivery and
performance of the Transaction Documents.  The Company shall pay all
stamp and other taxes and duties levied in connection with the issuance of the
Securities.

     

    6.2          Entire
Agreement.  The Transaction Documents, together with the
Exhibits and Schedules thereto, contain the entire understanding of the parties
with respect to the subject matter hereof and supersede all prior agreements,
understandings, discussions and representations, oral or written, with respect
to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules.

     

    6.3          Notices.  Any
and all notices or other communications or deliveries required or permitted to
be provided hereunder shall be in writing and shall be deemed given and
effective on the earliest of (a) the date of transmission, if such notice or
communication is delivered via email or facsimile (provided the sender receives
a machine-generated confirmation of successful transmission) at the facsimile
number specified in this Section (b) the Trading Day following the date of
mailing, if sent by U.S. nationally recognized overnight courier service, or (c)
upon actual receipt by the party to whom such notice is required to be
given.  The address for such notices and communications shall be as
follows:


    
      
         


      

      
        30

        
          

        

      

      
         


      

    


    
      	
               
      

            	
              If
      to the Company:

            	
              ECOtality,
      Inc.

            


    

    
      	
               
      

            	
              Four
      Embarcadero Center, Suite 3720

            


    

    
      	
               
      

            	
              San
      Francisco, CA 94111

            


    

    
      	
               
      

            	
              Facsimile:  (415)
      992-3001

            


    

    
      	
               
      

            	
              Attn:
      Chief Executive Officer

            


    

     

    
      	
               
      

            	
              With
      a copy to:

            	
              Farella
      Braun + Martel LLP

            


    

    
      	
               
      

            	
              Russ
      Building

            


    

    
      	
               
      

            	
              235
      Montgomery Street, 17th floor

            


    

    
      	
               
      

            	
              San
      Francisco, CA  94104

            


    

    
      	
               
      

            	
              Facsimile:  (415)
      954-4480

            


    

    
      	
               
      

            	
              Attn.:   Samuel
      Dibble / Bruce Maximov

            


    

     

    
      	
               
      

            	
              If
      to the Investor:

            	
              ABB
      Technology Ventures, Ltd.

            


    

    
      	
               
      

            	
              Affolternstrasse
      44

            


    

    
      	
               
      

            	
              P.O.
      Box

            


    

    
      	
               
      

            	
              CH-8050

            


    

    
      	
               
      

            	
              Zurich/Switzerland

            


    

    
      	
               
      

            	
              Attn:   Girish
      Nadkarni

            


    

     

    
      	
               
      

            	
              With
      a copy to:

            	
              ABB
      Ltd.

            


    

    
      	
               
      

            	
              EC-LC

            


    

    
      	
               
      

            	
              Affolternstrasse
      44

            


    

    
      	
               
      

            	
              8050
      Zurich

            


    

    
      	
               
      

            	
              SWITZERLAND

            


    

    
      	
               
      

            	
              Attn:   Diane
      Desaintvictor, Executive Vice

            


    

    
      	
               
      

            	
                         President,General
      Counsel & Secretary

            


    

    


    
      	
               
      

            	
              And:

            	
              Kirkland
      & Ellis LLP

            


    

    
      	
               
      

            	
              601
      Lexington Avenue

            


    

    
      	
               
      

            	
              New
      York, NY 10022

            


    

    
      	
               
      

            	
              Facsimile:   (212)
      446-4900

            


    

    
      	
               
      

            	
              Attn:   Thomas
      Christopher /

            


    

    
      	
               
      

            	
                         Christopher
      Kitchen

            


    

     

    or such
other address as may be designated in writing hereafter, in the same manner, by
such Person.

     

    6.4          Amendments; Waivers; No
Additional Consideration.  No provision of this Agreement may
be waived or amended except in a written instrument signed by the Company and
the Investor.  No waiver of any default with respect to any provision,
condition or requirement of this Agreement shall be deemed to be a continuing
waiver in the future or a waiver of any subsequent default or a waiver of any
other provision, condition or requirement hereof, nor shall any delay or
omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right.

     

    6.5          Termination.  This
Agreement may be terminated prior to Closing:


    
      
         


      

      
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    (a)          upon
the mutual written consent of the Company and the Investor;

     

    (b)          by
the Company if any of the conditions set forth in Section 5.2 shall have become
incapable of fulfillment, and shall not have been waived by the
Company;

     

    (c)          by
the Investor if any of the conditions set forth in Section 5.1 shall have become
incapable of fulfillment, and shall not have been waived by the Investor;
or

     

    (d)          by
the Company or the Investor upon written notice to the other, if the Closing
shall not have taken place by 6:30 p.m. Eastern time on the Outside
Date;

     

    provided, however, that,
except in the case of clause (a) above, the party seeking to terminate its
obligation to effect the Closing shall not then be in breach of any of its
representations, warranties, covenants or agreements contained in this Agreement
or the other Transaction Documents if such breach has resulted in the
circumstances giving rise to such party’s seeking to terminate its obligation to
effect the Closing.

     

    Upon a
termination in accordance with this Section 6.5, the
Company and the Investor shall not have any further obligation or liability
(including as arising from such termination) to the other under the Transaction
Documents as a result therefrom.  Any proper termination of this
Agreement pursuant to this Section 6.5 shall be effective immediately upon the
delivery of written notice of the terminating party to the other party
hereto.

     

    6.6          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.  This Agreement
shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Agreement or any of the Transaction
Documents.

     

    6.7          Successors and
Assigns.  This Agreement shall be binding upon and inure to the
benefit of the parties and their successors and permitted
assigns.  The Company may not assign this Agreement or any rights or
obligations hereunder without the prior written consent of the
Investor.  The Investor may assign any or all of its rights under this
Agreement to any Person to whom the Investor assigns or transfers at least 75%
of the Securities, in the aggregate (but without duplication), purchased on the
Closing Date, provided that (1) such transferee agrees in writing to be bound,
with respect to the transferred Securities, by the provisions hereof that apply
to the "Investors" and (2) such transfer shall be subject to the consent of the
Company, which consent shall not be unreasonably withheld or
delayed.

     

    6.8          No Third-Party
Beneficiaries.  This Agreement is intended for the benefit of
the parties hereto and their respective successors and permitted assigns and is
not for the benefit of, nor may any provision hereof be enforced by, any other
Person, except as otherwise set forth in Section 4.6 (as to
each Investor Party).


    
      
         


      

      
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    6.9          Governing Law; Consent to
Jurisdiction; Waiver of Jury Trial.  All questions concerning
the construction, validity, enforcement and interpretation of this Agreement
shall be governed by and construed and enforced in accordance with the laws of
the State of New York applicable to contracts executed in and to be performed in
that State, without regard to the principles of conflicts of law thereof or of
any other jurisdiction.  Each party agrees that all Proceedings
concerning the interpretations, enforcement and defense of the transactions
contemplated by this Agreement and any other Transaction Documents (whether
brought against a party hereto or its respective Affiliates, employees or
agents) shall be commenced exclusively in the New York Courts.  Each
party hereto hereby irrevocably submits to the exclusive jurisdiction of the New
York Courts for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein
(including with respect to the enforcement of the any of the Transaction
Documents), and hereby irrevocably waives, and agrees not to assert in any
Proceeding, any claim that it is not personally subject to the jurisdiction of
any such New York Court, or that such Proceeding has been commenced in an
improper or inconvenient forum.  Each party hereto hereby irrevocably
waives personal service of process and consents to process being served in any
such Proceeding by mailing a copy thereof via registered or certified mail or
overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall
constitute good and sufficient service of process and notice
thereof.  Nothing contained herein shall be deemed to limit in any way
any right to serve process in any manner permitted by law.  EACH PARTY HERETO HEREBY IRREVOCABLY
WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO
TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY AND REPRESENTS AND WARRANTS
THAT COUNSEL HAS BEEN CONSULTED SPECIFICALLY AS TO THIS
WAIVER.  If either party shall commence a Proceeding to enforce
any provisions of a Transaction Document, then the prevailing party in such
Proceeding shall be reimbursed by the other party for its reasonable attorneys’
fees and other costs and expenses incurred with the investigation, preparation
and prosecution of such Proceeding.

     

    6.10        Survival.  The
representations, warranties, agreements and covenants contained herein shall
survive the Closing and the delivery of the Shares and Warrant until the
expiration of the applicable statute of limitations.

     

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

     

    6.12        Severability.  If
any provision of this Agreement is held to be invalid or unenforceable in any
respect, the validity and enforceability of the remaining terms and provisions
of this Agreement shall not in any way be affected or impaired thereby and the
parties will attempt to agree upon a valid and enforceable provision that is a
reasonable substitute therefor, and upon so agreeing, shall incorporate such
substitute provision in this Agreement.


    
      
         


      

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

     

    6.14        Replacement of
Securities.  If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or
cause to be issued in exchange and substitution for and upon cancellation
thereof, or in lieu of and substitution therefor, a new certificate or
instrument, but only upon receipt of evidence reasonably satisfactory to the
Company of such loss, theft or destruction and customary and reasonable
indemnity, if requested.  The applicants for a new certificate or
instrument under such circumstances shall also pay any reasonable third-party
costs associated with the issuance of such replacement Securities.  If
a replacement certificate or instrument evidencing any Securities is requested
due to a mutilation thereof, the Company may require delivery of such mutilated
certificate or instrument as a condition precedent to any issuance of a
replacement.

     

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

     

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

     

    6.17        Limitation of
Liability.  Notwithstanding anything herein to the contrary,
the Company acknowledges and agrees that the liability of the Investor arising
directly or indirectly, under any Transaction Document of any and every nature
whatsoever shall be satisfied solely out of the assets of the Investor, and that
no trustee, officer, other investment vehicle or any other Affiliate of the
Investor or any investor, stockholder or holder of shares of beneficial interest
of such a Investor shall be personally liable for any liabilities of the
Investor.

     

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

     

    
      
        
          	 
      	
                  ECOTALITY,
      INC.

                
	 
      	 
      	 
      
	 
      	
                  By: 

                	 
      
	 
      	 
      	
                  Name: 

                	
                    

                
	 
      	 
      	
                  Title:

                	 
      


        

      

    

     

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

     

    
      
        
          
            	 
      	
                    ABB
      TECHNOLOGY VENTURES, LTD

                  
	 
      	 
      	 
      
	 
      	
                    By: 

                  	 
      
	 
      	 
      	
                    Name: 

                  	
                      

                  
	 
      	 
      	
                    Title:

                  	
                      

                  
	 
      	 
      	 
      
	 
      	
                    By:

                  	 
      
	 
      	 
      	
                    Name:

                  	
                      

                  
	 
      	 
      	
                    Title: