dec1504_ex



  Exhibit 10.1 

  SECURITIES PURCHASE AGREEMENT
  




     This Securities Purchase Agreement (this “Agreement”) is dated as of December 14, 2004, among Genta Incorporated, a Delaware
corporation (the “Company”), and each purchaser identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser” and collectively the “Purchasers”); and 


     WHEREAS, subject to the terms and conditions set forth in this Agreement, the Company desires to issue and sell to each Purchaser, and each Purchaser, severally and not jointly, desires to purchase
from the Company in the aggregate, 15,000,000 shares of Common Stock on the Closing Date pursuant to an effective Registration Statement on Form S-3 (Registration No. 333-114151). 


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

ARTICLE I. 

    DEFINITIONS


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



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


     “Affiliate” means any Person that, directly or indirectly through one or more intermediaries, controls or is controlled by or is
under common control with a Person as such terms are used in and construed under Rule 144. With respect to a Purchaser, any investment fund or managed account that is managed on a discretionary basis by the same investment manager as such Purchaser
will be deemed to be an Affiliate of such Purchaser. 


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

     “Closing Date” means December 15, 2004.
     “Commission” means the United States 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 the Subsidiaries which would entitle the holder thereof to
acquire at any time Common Stock, including, without limitation, any debt, preferred stock, rights, options, warrants or other instruments that is at any time convertible into or exercisable or exchangeable for, or otherwise entitles the holder
thereof to receive, Common Stock. 



1

















     “Company Counsel” means Stefan C. Grant, M.D., Vice President and Corporate Counsel of the Company. 


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


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


     “Exempt Issuance” means the issuance of (a) shares of Common Stock or options to employees, officers or directors of the Company
pursuant to any stock or option plan duly adopted by a majority of the non-employee members of the Board of Directors of the Company or a majority of the members of a committee of non-employee directors established for such purpose, (b) securities
upon the exercise of or conversion of any convertible securities, options or warrants issued and outstanding on the date of this Agreement, provided that such securities have not been amended since the date of this Agreement (c) securities issued
pursuant to acquisitions or strategic transactions, provided any such issuance shall only be to a Person which is, itself or through its subsidiaries, an operating company in a business synergistic with the business of the Company and in which the
Company receives benefits in addition to the investment of funds, but shall not include a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in
securities; and (d) securities issued pursuant to any firm-commitment fully underwritten public offering of Common Stock through one or more nationally recognized investment banking firms for aggregate gross proceeds to the Company of at least
$50,000,000. 


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


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



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


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


     “Per Share Purchase Price” equals $1.50 per share, subject to adjustment
for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the Common Stock that occur after the date of this Agreement. 


     “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. 



2


  

  












     “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 the registration statement of the Company on Form S-3 (Registration No. 333-114151) covering the
Shares, and shall include the prospectus included therein and any supplement delivered to the Purchasers in connection with the transactions contemplated by this Agreement. 


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


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


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


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


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


     “Subscription Amount” means, as to each Purchaser, the amounts set forth below such Purchaser’s signature block on the
signature page hereto, in United States dollars and in immediately available funds. 


     “Subsidiary” of the Company means any corporation, limited liability company, partnership, association or other entity of which
securities or other ownership interests representing more than 50% of the equity or more than 50% of the ordinary voting power or, in the case of a partnership, more than 50% of the general partnership interests are owned, controlled or held by the
Company. 


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


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


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




3


 

 







  


  ARTICLE II. 

    PURCHASE AND SALE


     2.1 Closing. On the Closing Date, each Purchaser shall purchase from the Company, severally and not jointly
with the other Purchaser, and the Company shall issue and sell to each Purchaser 7,500,000 shares of Common Stock at $1.50 per share. The aggregate number of Shares sold hereunder shall be not more than 15,000,000 shares. Upon satisfaction of the
conditions set forth in Section 2.2, the Closing shall occur at the offices of Davis Polk & Wardwell, 450 Lexington Avenue, New York, New York 10017 or such other location as the parties shall mutually agree. 


     2.2     Deliveries.



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





     (i) via the Depository Trust Company’s Deposit
Withdrawal Agent Commission system, 7,500,000 shares of Common Stock, in accordance with  each such Purchaser’s
delivery instructions; 

     (ii) a officer’s certificate of the Company’s Chief Executive Officer or Chief Financial Officer, in form reasonably acceptable to
the Purchasers, certifying the continuing accuracy of the Company’s representations and warranties made in this Agreement and the Company’s performance of the covenants to be performed by it pursuant to this Agreement at or prior to
Closing; 


     (iii) a legal opinion of Company Counsel, in the form of Exhibit C attached hereto;
and 


     (iv) the Registration Statement shall be effective and available for the issuance and sale of the Shares hereunder and the Company shall have
delivered to such Purchaser any prospectus and prospectus supplement as required hereunder, under the Registration Statement and under the Securities Act. 








     (b) On the Closing Date, each Purchaser shall deliver or cause to be delivered to the Company $11,250,000 by wire transfer to the account as
specified in writing by the Company. 




     2.3 Closing Conditions. 



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




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






4

  

  














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


     (iii) the delivery by each Purchaser of such Purchaser’s Subscription Amount in accordance with Section 2.2(b) of this Agreement.









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







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



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


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


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


     (v) from the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission and, at any time
prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such
service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or
international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of each Purchaser, makes it impracticable or inadvisable to purchase the Shares at the
Closing. 






ARTICLE III. 

    REPRESENTATIONS AND WARRANTIES


     3.1 Representations and Warranties of the Company. 




     (a) Subsidiaries.
With the exception of Genta Development Ltd., a United Kingdom company, and
Genta Europe, S.A., a French company, all of the direct and indirect Subsidiaries of the Company are
set forth in Exhibit 21 to the Company’s Annual Report on Form 10-K for the year ended December
31,  2003 as filed with the Commission. The Company owns, directly or indirectly, all of the capital
stock or other equity interests of each Subsidiary free and clear of any Liens, and all the issued and
outstanding shares of capital stock of each  Subsidiary are validly issued and are fully




5

  

  













paid, non-assessable and free of preemptive and similar rights to subscribe for or purchase securities. 


     (b) Organization and Qualification.  Each of the Company and the Subsidiaries is an entity duly incorporated
or otherwise organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation or organization (as applicable), with the requisite power and authority to own and use its properties and assets and to carry on
its business as currently conducted. Neither the Company nor any Subsidiary is in violation or default of any of the provisions of its respective certificate or articles of incorporation, bylaws or other organizational or charter documents. Each of
the Company and the Subsidiaries is duly qualified to conduct business and is in good standing as a foreign corporation or other entity in each jurisdiction in which the nature of the business conducted or property owned by it makes such
qualification necessary, except where the failure to be so qualified or in good standing, as the case may be, would not have or reasonably be expected to result in, individually or in the aggregate (i) a material adverse effect on the legality,
validity or enforceability of any Transaction Document, (ii) a material adverse effect on the results of operations, assets, properties, business, prospects or financial condition of the Company and the Subsidiaries, taken as a whole, or (iii) a
material adverse effect on the Company’s ability to perform in any material respect on a timely basis its obligations under any Transaction Document (any of (i), (ii) or (iii), a “Material Adverse
Effect”) and no Proceeding has been instituted in any such jurisdiction revoking, limiting or curtailing or seeking to revoke, limit or curtail such power and authority or qualification. 


     (c) Authorization; Enforcement.  The Company has the requisite corporate power and authority to enter into and
to consummate the transactions contemplated by each of the Transaction Documents and otherwise to carry out its obligations hereunder and thereunder. The execution and delivery of each of the Transaction Documents by the Company and the consummation
by it of the transactions contemplated hereby and thereby have been duly authorized by all necessary action on the part of the Company and no further action is required by the Company in connection herewith and therewith other than in connection
with the Required Approvals. Each Transaction Document has been (or upon delivery will have been) duly executed by the Company and, when delivered in accordance with the terms hereof, will constitute the valid and binding obligation of the Company
enforceable against the Company in accordance with its terms except (i) as limited by applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally and
(ii) as limited by laws relating to the availability of specific performance, injunctive relief or other equitable remedies. 


     (d) No Conflicts. The execution, delivery and performance of the Transaction Documents by the Company, the
issuance and sale of the Shares and the consummation by the Company of the other transactions contemplated hereby and thereby do not and will not (i) conflict with or violate any provision of the Company’s or any Subsidiary’s certificate
or articles of incorporation, bylaws or other organizational or charter documents, or (ii) conflict with, or constitute a default (or an event that with notice or lapse of time or both would become a default) under, result in the creation of any
Lien




6

  

  













upon any of the properties or assets of the Company or any Subsidiary, or give to others any rights of termination, amendment, acceleration or cancellation (with or without notice, lapse of time or both) of, any agreement, credit
facility, debt or other instrument (evidencing a debt of the Company or a Subsidiary or otherwise) or other understanding to which the Company or any Subsidiary is a party or by which any property or asset of the Company or any Subsidiary is bound
or affected, or (iii) subject to the Required Approvals, conflict with or result in a violation of any law, rule, regulation, order, judgment, injunction, decree or other restriction of any court or governmental authority to which the Company or a
Subsidiary is subject (including federal and state securities laws and regulations), or by which any property or asset of the Company or a Subsidiary is bound or affected, or (iv) conflict with or violate the terms of any agreement by which the
Company or any Subsidiary is bound or to which any property or asset of the Company or any Subsidiary is bound or affected; except in the case of each of clauses (ii) and (iii), such as would not have or reasonably be expected to result in,
individually or in the aggregate, a Material Adverse Effect. 


     (e) Filings, Consents and Approvals. The Company is not required to obtain any consent, waiver, authorization
or order of, give any notice to, or make any filing or registration with, any court or other federal, state, local or other governmental authority or other Person in connection with the execution, delivery and performance by the Company of the
Transaction Documents, other than (i) filings required pursuant to Section 4.1 of this Agreement, and (ii) such filings as are required to be made under applicable state securities laws (collectively, the “Required
Approvals”). 


     (f) Issuance of the Shares. The Shares are duly authorized and, when issued and paid for in accordance with
this Agreement, 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 pursuant to this
Agreement.  The issuance by the Company of the Shares has been registered under the Securities Act and all of the Shares are freely transferable and tradable by the Purchasers without restriction. The Shares are being issued pursuant to the
Registration Statement and the issuance of the Shares has been registered by the Company under the Securities Act. The Registration Statement is effective and available for the issuance of the Shares thereunder and the Company has not received any
notice that the Commission has issued or intends to issue a stop-order with respect to the Registration Statement or that the Commission otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or
permanently, or intends or has threatened in writing to do so.  The "Plan of Distribution" section under the Registration Statement permits the issuance and sale of the Shares hereunder.  Upon receipt of the Shares and making payment for them in
accordance with the terms hereof, the Purchasers will have good and marketable title to such Shares and the Shares will be freely tradable on the Nasdaq National Market. 


     (g) Capitalization. The capitalization of the Company is as described in the Company’s Quarterly Report
on Form 10-Q for the quarter ended September 30, 2004 as filed with the Commission. The Company has not issued any capital stock since such filing other than pursuant to the exercise of employee stock options under the Company’s




7



  

  













stock option plans, the issuance of shares of Common Stock to employees pursuant to the Company’s employee stock purchase plan and pursuant to the conversion, exercise or exchange of outstanding Common Stock Equivalents. No
Person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Transaction Documents. The issue and sale of the Shares will not obligate the Company to
issue shares of Common Stock or other securities to any Person (other than the Purchasers) and, with the exception of the Company’s outstanding warrants and convertible preferred stock, will not result in a right of any holder of securities of
the Company to adjust the exercise, conversion, exchange or reset price under such securities. All of the outstanding shares of capital stock of the Company are validly issued, fully paid and nonassessable, have been issued in compliance with all
federal and state securities laws, and none of such outstanding shares was issued in violation of any preemptive rights or similar rights to subscribe for or purchase securities. No further approval or authorization of any stockholder, the Board of
Directors of the Company or others is required for the issuance and sale of the Shares. Except as disclosed in the SEC Reports, there are no stockholders agreements, voting agreements or other similar agreements with respect to the Company’s
capital stock to which the Company is a party or, to the knowledge of the Company, between or among any of the Company’s stockholders. 


     (h) SEC Reports; Financial Statements.  The Company has filed all reports required to be filed by it under the
Exchange Act, including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof (the foregoing materials, including the exhibits thereto, being collectively referred to herein as the “SEC Reports”) on a timely basis or has received a valid extension of such time of filing and has filed any such SEC Reports prior to the expiration of any such extension. As of their respective dates,
the SEC Reports complied in all material respects with the requirements of the 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 the light of the circumstances under which they were made, not misleading. The Registration Statement and any prospectus
included therein, including the prospectus supplement to be filed covering the transactions covered hereby, complied in all material respects with the requirements of the Securities Act and the rules and regulations of the Commission promulgated
thereunder, and none of the Registration Statement or any such prospectus contain or contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary in order to make the statements
therein, in the case of any prospectus in the light of the circumstances under which they were made, not misleading. The financial statements of the Company included in the SEC Reports comply in all material respects with applicable accounting
requirements and the rules and regulations of the Commission with respect thereto as in effect at the time of filing. Such financial statements have been prepared in accordance with United States generally accepted accounting principles applied on a
consistent basis during the periods involved (“GAAP”), except as may be otherwise specified in such financial statements or the notes thereto and except that unaudited financial
statements may not contain all footnotes required by GAAP, and fairly present in all material respects the financial position of the Company and its consolidated




8

  

  












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, year-end audit adjustments. 


     (i) Material Changes. Since the date of the latest audited financial statements included within the SEC
Reports, except as specifically disclosed in 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, except as has been reasonably cured by the
Company and except for any of the foregoing attributable to a decrease in the trading price of the Common Stock (ii) the Company has not incurred any liabilities (contingent or otherwise) other than (A) trade payables and accrued expenses incurred
in the ordinary course of business consistent with past practice and (B) liabilities not required to be reflected in the Company's financial statements pursuant to GAAP or required to be disclosed in filings made with the Commission, (iii) the
Company has not altered its method of accounting, (iv) the Company has not declared or made any dividend or distribution of cash or other property to its stockholders or purchased, redeemed or made any agreements to purchase or redeem any shares of
its capital stock and (v) the Company has not issued any equity securities to any officer, director or Affiliate, except pursuant to existing Company stock option plans. The Company does not have pending before the Commission any request for
confidential treatment of information. 


     (j) Litigation.  Except as disclosed in the SEC Reports, there is no action, suit, inquiry, notice of
violation, proceeding or investigation pending or, to the knowledge of the Company, threatened against or affecting the Company, any Subsidiary or any of their respective properties before or by any court, arbitrator, governmental or administrative
agency or regulatory authority (federal, state, county, local or foreign) (collectively, an “Action”) which (i) adversely affects or challenges the legality, validity or
enforceability of any of the Transaction Documents or the Shares or (ii) would, if there were an unfavorable decision, have or reasonably be expected to result in a Material Adverse Effect. Except as disclosed in the SEC Reports, neither the Company
nor any Subsidiary, nor any director or officer thereof, is or has been the subject of any Action involving a claim of violation of or liability under federal or state securities laws or a claim of breach of fiduciary duty, except as disclosed in
the SEC Reports, there has not been, and to the knowledge of the Company, there is not pending or contemplated, any investigation by the Commission involving the Company or any current or former director or officer of the Company. The Commission has
not issued any stop order or other order suspending the effectiveness of any registration statement filed by the Company or any Subsidiary under the Exchange Act or the Securities Act. 


     (k) Labor Relations. No material labor dispute exists or, to the knowledge of the Company, is imminent with
respect to any of the employees of the Company which would reasonably be expected to result in a Material Adverse Effect. 


     (l) Compliance.  Neither the Company nor any Subsidiary (i) is in default under or in violation of (and no
event has occurred that has not been waived that, with notice or lapse of time or both, would result in a default by the Company or any




9

  

  














Subsidiary under), nor has the Company or any Subsidiary received notice of a claim that it is in default under or that it is in violation of, any indenture, loan or credit agreement or any other agreement or instrument to which
it is a party or by which it or any of its properties is bound (whether or not such default or violation has been waived), (ii) is in violation of any order of any court, arbitrator or governmental body, or (iii) is or has been in violation of any
statute, rule or regulation of any governmental authority, including without limitation all foreign, federal, state and local laws applicable to its business except in each case as would not have a Material Adverse Effect. 


     (m) Regulatory Permits.  The Company and the Subsidiaries possess all certificates, authorizations and permits
issued by the appropriate federal, state, local or foreign regulatory authorities necessary to conduct their respective businesses as described in the SEC Reports, except where the failure to possess such permits would not have or reasonably be
expected to result in a Material Adverse Effect (“Material Permits”), and neither the Company nor any Subsidiary has received any notice of proceedings relating to the revocation
or modification of any Material Permit. 


     (n) Title to Assets.  The Company and the Subsidiaries have good and marketable title in fee simple to all
real property owned by them that is material to the business of the Company and the Subsidiaries and good and marketable title in all personal property owned by them that is material to the business of the Company and the Subsidiaries, in each case
free and clear of all Liens, except for Liens as do not materially affect the value of such property and do not materially interfere with the use made and proposed to be made of such property by the Company and the Subsidiaries and Liens for the
payment of federal, state or other taxes, the payment of which is neither delinquent nor subject to penalties.  Any real property and facilities held under lease by the Company and the Subsidiaries are held by them under valid, subsisting and
enforceable leases of which the Company and the Subsidiaries are in compliance. 


     (o) Patents and Trademarks. The Company and the Subsidiaries have, or have rights to use, all patents, patent
applications, trademarks, trademark applications, service marks, trade names, copyrights, licenses and other similar rights necessary or material for use in connection with their respective businesses as described in the SEC Reports and which the
failure to so have would have a Material Adverse Effect (collectively, the “Intellectual Property Rights”).  Except as disclosed in the SEC Reports and except where such violations
or infringements would not have a Material Adverse Effect, neither the Company nor any Subsidiary has received a written notice that the Intellectual Property Rights used by the Company or any Subsidiary violates or infringes upon the rights of any
Person. To the knowledge of the Company, except as disclosed in the SEC Reports and except where such unenforceability or infringements would not have a Material Adverse Effect, all such Intellectual Property Rights are enforceable and there is no
existing infringement by another Person of any of the Intellectual Property Rights of others. 


     (p) Insurance. The Company and the Subsidiaries are insured by insurers of recognized financial responsibility
against such losses and risks and in such amounts as are prudent and customary in the businesses in which the Company and the Subsidiaries




10


  

  












are engaged. To the best of Company’s knowledge, such insurance contracts and policies are accurate and complete in all material aspects.  Neither the Company nor any Subsidiary has any reason to believe that it will not be
able to renew its existing insurance coverage as and when such coverage expires or to obtain similar coverage from similar insurers as may be necessary to continue its business without a significant increase in cost. 


     (q) Transactions With Affiliates and Employees.  Except as set forth in the SEC Reports, none of the officers
or directors of the Company and, to the knowledge of the Company, none of the employees of the Company is presently a party to any transaction with the Company or any Subsidiary (other than for services as employees, officers and directors),
including any contract, agreement or other arrangement providing for the furnishing of services to or by, providing for rental of real or personal property to or from, or otherwise requiring payments to or from any officer, director or such employee
or, to the knowledge of the Company, any entity in which any officer, director, or any such employee has a substantial interest or is an officer, director, trustee or partner, in each case in excess of $60,000 other than (i) for payment of salary or
consulting fees for services rendered, (ii) reimbursement for expenses incurred on behalf of the Company and (iii) for other employee benefits, including stock option agreements under any stock option plan of the Company. 


     (r) Sarbanes-Oxley; Internal Accounting Controls.  The Company is in material compliance with all provisions
of the Sarbanes-Oxley Act of 2002 which are applicable to it as of the Closing Date. The Company has established disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and designed such
disclosure controls and procedures to ensure that material information relating to the Company, including its subsidiaries, is made known to the certifying officers by others within those entities, particularly during the period in which the
Company's most recently filed periodic report under the Exchange Act, as the case may be, is being prepared.  The Company's certifying officers have evaluated the effectiveness of the Company's controls and procedures as of the date prior to the
filing date of the most recently filed periodic report under the Exchange Act (such date, the “Evaluation Date”).  The Company presented in its most recently filed periodic report
under the Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure controls and procedures based on their evaluations as of the Evaluation Date.  Since the Evaluation Date, there have been no significant
changes in the Company's internal controls (as such term is defined in Item 307(b) of Regulation S-K under the Exchange Act) or, to the Company's knowledge, in other factors that would significantly affect the Company's internal controls.



     (s) Certain Fees. No brokerage or finder’s fees or commissions are or will be payable by the Company to
any broker, financial advisor or consultant, finder, placement agent, investment banker, bank or other Person with respect to the transactions contemplated by this Agreement, other than a fee to Rodman & Renshaw, LLC in connection with the sale
of the Shares at Closing. The Purchasers shall have no obligation with respect to any fees or with respect to any claims made by or on behalf of other




11


















Persons for fees of a type contemplated in this Section that may be due in connection with the transactions contemplated by this Agreement. 


     (t) Listing and Maintenance Requirements. The Common Stock is registered pursuant to Section 12(g) of the
Exchange Act, and the Company has taken no action designed to, or which to its knowledge is likely to have the effect of, terminating the registration of the Common Stock under the Exchange Act nor has the Company received any notification that the
Commission is contemplating terminating such registration. The Company has not, in the 12 months preceding the date hereof, received notice from any Trading Market on which the Common Stock is or has been listed or quoted to the effect that the
Company is not in compliance with the listing or maintenance requirements of such Trading Market. The Company is in compliance with all such listing and maintenance requirements. 


     (u) Application of Takeover Protections.  The Company and its Board of Directors have taken all necessary
action, if any, in order to render inapplicable any control share acquisition, business combination, poison pill (including any distribution under a rights agreement) or other similar anti-takeover provision under the Company's Certificate of
Incorporation (or similar charter documents) or the laws of its state of incorporation that is or would become applicable to the Purchasers as a result of the Purchasers and the Company fulfilling their obligations or exercising their rights under
the Transaction Documents, including, without limitation, the Company's issuance of the Shares and the Purchasers’ ownership of the Shares. 


     (v) Disclosure.  The Company confirms that, neither the Company nor any other Person acting on its behalf has
provided any of the Purchasers or their agents or counsel with any information that constitutes or might constitute material, non-public information. The Company understands and confirms that the Purchasers will rely on the foregoing representations
and covenants in effecting transactions in securities of the Company. All disclosure provided to the Purchasers regarding the Company, its business and the transactions contemplated hereby furnished by or on behalf of the Company with respect to the
transactions contemplated hereby and the representations and warranties made herein are true and correct 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 the light of the circumstances under which they were made, not misleading. The Company acknowledges and agrees that no Purchaser makes or has made any representations or warranties with respect to the transactions contemplated hereby
other than those specifically set forth in Section 3.2 hereof. 


     (w) No Integrated Offering. Assuming the accuracy of the Purchasers’ representations and warranties set
forth in Section 3.2, neither the Company, nor any of its affiliates, nor any Person acting on its or their behalf has, directly or indirectly, made any offers or sales of any security or solicited any offers to buy any security, under circumstances
that would, to the knowledge of the Company, cause the sale of the Shares to be integrated with prior offerings by the Company for purposes of any applicable shareholder approval provisions, including, without limitation, under the rules
and




12


  

  














regulations of any exchange or automated quotation system on which any of the securities of the Company are listed or designated. 


     (x) Taxes. Except for matters that would not, individually or in the aggregate, have or reasonably be expected
to result in a Material Adverse Effect, the Company and each Subsidiary has filed all necessary federal, state and foreign income and franchise tax returns and has paid or accrued all taxes shown as due thereon, and the Company has no knowledge of a
tax deficiency which has been asserted or threatened against the Company or any Subsidiary. 


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


     (z) Acknowledgment Regarding Purchasers’ Purchase of Shares.  The Company acknowledges and agrees that
each of the Purchasers is acting solely in the capacity of an arm's length purchaser with respect to the Transaction Documents and the transactions contemplated hereby. The Company further acknowledges that no Purchaser is acting as a financial
advisor or fiduciary of the Company (or in any similar capacity) with respect to this Agreement and the transactions contemplated hereby and any advice given by any Purchaser or any of their respective representatives or agents in connection with
this Agreement and the transactions contemplated hereby is merely incidental to the Purchasers’ purchase of the Shares. The Company further represents to each Purchaser that the Company’s decision to enter into this Agreement has been
based solely on the independent evaluation of the transactions contemplated hereby by the Company and its representatives. 


     (aa) Approvals. The issuance and listing on the Nasdaq National Market of the Shares requires no further
approvals, including but not limited to, the approval of the stockholders of the Company. 





     3.2 Representations and Warranties of the Purchasers.  Each Purchaser hereby, for itself and for no other
Purchaser, represents and warrants as of the date hereof and as of the Closing Date to the Company as follows: 




     (a) Organization; Authority.  Such Purchaser is an entity duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization with full right, corporate, limited liability company or partnership power and authority to enter into and to consummate the transactions contemplated by this Agreement and otherwise to
carry out its obligations hereunder. The execution, delivery and performance




13

  

  














by such Purchaser of this Agreement have been duly authorized by all necessary corporate, limited liability company, partnership or similar action on the part of such Purchaser.  This Agreement has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will constitute the valid and legally binding obligation of such Purchaser, enforceable against it in accordance with its terms, except (i) as limited by general
equitable principles and applicable bankruptcy, insolvency, reorganization, moratorium and other laws of general application affecting enforcement of creditors’ rights generally, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and contribution provisions may be limited by applicable law. 


     (b) Distribution.  Such Purchaser does not have any agreement or understanding, directly or indirectly, with
any Person to distribute any of the Shares. Such Purchaser is not required to be registered as a broker-dealer under Section 15 of the Exchange Act. 





     The Company acknowledges and agrees that each Purchaser does not make or has not made any representations or warranties with respect to the transactions contemplated hereby other than those
specifically set forth in this Section 3.2. 

ARTICLE IV. 

    OTHER AGREEMENTS OF THE PARTIES


     4.1 Securities Laws Disclosure; Publicity. The Company shall, by 8:30 a.m., Eastern time, on the Trading Day
following the date hereof, issue a press release relating to the sale of the Shares, and shall file the prospectus supplement delivered by the Company in connection herewith with the Commission via the EDGAR system on a timely basis. Notwithstanding
the foregoing, the Company shall not publicly disclose the name of any Purchaser, or include the name of any Purchaser in any filing with the Commission or any regulatory agency or Trading Market, except as set forth in the exhibits to be attached
to the Form 8-K contemplated above, without the prior written consent of such Purchaser (such consent not to be unreasonably withheld), except (i) as required by federal securities law and (ii) to the extent such disclosure is required by law or
Trading Market regulations, in which case the Company shall provide the Purchasers with prior notice of such disclosure permitted under subclause (i) or (ii). 


     4.2 Shareholders Rights Plan. No claim will be made or enforced by the Company or, to the knowledge of the
Company, any other Person that any Purchaser is an “Acquiring Person” under any shareholders rights plan or similar plan or arrangement in effect or hereafter adopted by the Company, or that any Purchaser could be deemed to trigger the
provisions of any such plan or arrangement, by virtue of receiving Shares under the Transaction Documents or under any other agreement between the Company and the Purchasers. 


     4.3 Non-Public Information. The Company covenants and agrees that neither it nor any other Person acting on
its behalf will provide any Purchaser or its agents or counsel with any information that the Company believes constitutes material non-public information, unless prior thereto such Purchaser shall have executed a written agreement regarding the
confidentiality and

14

















use of such information. The Company understands and confirms that each Purchaser shall be relying on the foregoing representations in effecting transactions in securities of the Company. 


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


     4.5 Indemnification of Purchasers. Subject to the provisions of this Section 4.7, the Company will indemnify
and hold the Purchasers and their directors, officers, shareholders, partners, members, employees and agents (each, a “Purchaser Party”) harmless from any and all losses,
liabilities, obligations, claims, contingencies, damages, costs and expenses, including all judgments, amounts paid in settlements, court costs and reasonable attorneys’ fees and costs of investigation that any such Purchaser Party may suffer
or incur (the “Indemnified Liabilities”) as a result of or relating to (a) any breach of any of the representations, warranties, covenants or agreements made by the Company in this
Agreement or in the other Transaction Documents or (b) any cause of action, suit or claim brought or made against such Purchaser Party by a third party (including for these purposes a derivative action brought on behalf of the Company) and arising
out of or resulting from (i) the execution, delivery, performance or enforcement of the Transaction Documents or any other certificate, instrument or document contemplated hereby or thereby, (ii) any transaction financed or to be financed in whole
or in part, directly or indirectly, with the proceeds of the issuance of the Shares, or (iii) the status of such Purchaser or holder of the Shares as an investor in the Company. To the extent that the foregoing undertaking by the Company may be
unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities which is permissible under applicable law If any action shall be brought against any Purchaser Party
in respect of which indemnity may be sought pursuant to this Agreement, such Purchaser Party shall promptly notify the Company in writing, and the Company shall have the right to assume the defense thereof with counsel of its own choosing. Any
Purchaser Party shall have the right to employ separate counsel in any such action and participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Purchaser Party except to the extent that (i) the
employment thereof has been specifically authorized by the Company in writing, (ii) the Company has failed after a reasonable period of time to assume such defense and to employ

15


  

  













counsel or (iii) in such action there is, in the reasonable opinion of such separate counsel, a material conflict on any material issue between the position of the Company and the position of such Purchaser Party. The Company will
not be liable to any Purchaser Party under this Section 4.5 for any settlement by an Purchaser Party effected without the Company’s prior written consent, which shall not be unreasonably withheld or delayed. 


     4.6 Reservation of Common Stock. As of the date hereof, the Company has reserved a sufficient number of shares
of Common Stock for the purpose of enabling the Company to issue Shares pursuant to this Agreement. 


     4.7 Listing of Common Stock. The Company shall promptly secure the listing of all of the Shares upon each
national securities exchange and automated quotation system, if any, upon which the Common Stock is then listed or quoted.  The Company hereby agrees to use reasonable best efforts to maintain the listing of the Common Stock on a Trading Market. The
Company further agrees, if the Company applies to have the Common Stock traded on any other Trading Market, it will include in such application all of the Shares and will take such other action as is necessary to cause all of the Shares to be listed
on such other Trading Market as promptly as possible. The Company will take all action reasonably necessary to continue the listing and trading of its Common Stock on a Trading Market and will comply in all respects with the Company’s
reporting, filing and other obligations under the bylaws or rules of the Trading Market. 


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


     4.9 Approval of Subsequent Equity Sales.  The Company shall not issue shares of Common Stock or Common Stock
Equivalents if such issuance would require shareholder approval pursuant to Rule 4350 of the NASD Marketplace Rules or any similar rule of any other Trading Market, unless and until such shareholder approval is obtained prior to such issuance.



     4.10 Lock-Up; Participation in Future Financing. 


          (a) From the date hereof
until the date that is 50 Nasdaq trading days following
the Closing Date (the "Trigger Date"), the Company will not, directly or indirectly, offer, sell, grant
any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to
purchase or  other disposition of) any of its or its Subsidiaries' equity or equity equivalent securities,
including without limitation any debt, preferred stock or other instrument or security that is, at any
time during its life and under any circumstances,  convertible into or exchangeable or exercisable for
shares of Common Stock or Common Stock Equivalents (any such offer, sale, grant, disposition or announcement
being referred to as a "Subsequent Placement"). 

16


  

  











          (b) From the Trigger Date until the first anniversary of the Closing Date, the Company will not, directly or indirectly, effect any Subsequent Placement unless the Company shall have first complied
with this Section 4.10(b) . 


               (i) The Company shall deliver to each Purchaser a written notice (the "Offer Notice") of any proposed or intended issuance or sale or exchange (the "Offer") of the securities being offered (the "Offered Securities") in a Subsequent Placement, which Offer Notice shall (w) identify and describe the Offered Securities, (x) describe the price and other terms upon which they are to be issued, sold or exchanged, and the number or amount of the Offered
Securities to be issued, sold or exchanged, (y) identify the persons or entities (if known) to which or with which the Offered Securities are to be offered, issued, sold or exchanged and (z) offer to issue and sell to or exchange with such
Purchasers one-third of the Offered Securities, in each case allocated among such Purchaser (a) based on such Purchasers’ pro rata portion of the number of Shares purchased hereunder (the "Basic
Amount"), and (b) with respect to each Purchaser that elects to purchase its Basic Amount, any additional portion of the Offered Securities attributable to the Basic Amounts of the other Purchaser as such Purchaser
shall indicate it will purchase or acquire should the other Purchaser subscribes for less than its Basic Amounts (the "Undersubscription Amount"). 


               (ii) To accept an Offer, in whole or in part, such Purchaser must deliver a written notice to the Company prior to the end of the tenth
(10th) Business Day after such Purchaser's receipt of the Offer Notice (the "Offer Period"), setting forth the portion of such
Purchaser's Basic Amount that such Purchaser elects to purchase and, if such Purchaser shall elect to purchase all of its Basic Amount, the Undersubscription Amount, if any, that such Purchaser elects to purchase (in either case, the
"Notice of Acceptance"). If the Basic Amounts subscribed for by all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set forth an Undersubscription
Amount in its Notice of Acceptance shall be entitled to purchase, in addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for. 


               (iii) The Company shall have five (5) Business Days from the expiration of the Offer Period above to offer, issue, sell or exchange all or any
part of such Offered Securities as to which a Notice of Acceptance has not been given by the Purchasers (the "Refused Securities"), but only to the offerees described in the Offer Notice (if
so described therein) and only upon terms and conditions (including, without limitation, unit prices and interest rates) that are not more favorable to the acquiring person or persons or less favorable to the Company than those set forth in the
Offer Notice. 


               (iv) In the event the Company shall propose to sell less than all the Refused Securities (any such sale to be in the manner and on the terms
specified in Section 4.10(b)(iii) above), then each Purchaser may, at its sole option and in its sole discretion, reduce the number or amount of the Offered Securities specified in its Notice of Acceptance to an amount that shall be not less than
the number or amount of the Offered Securities that such Purchaser elected to purchase pursuant to Section 4.10(b)(ii) above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered Securities the Company
actually proposes to issue, sell or exchange (including Offered Securities to be issued or sold to Purchasers pursuant to Section 4.10(b)(iii) above prior to such reduction) and (ii) the

17
















denominator of which shall be the original amount of the Offered Securities. In the event that any Purchaser so elects to reduce the number or amount of Offered Securities specified in its Notice of Acceptance, the Company may not
issue, sell or exchange more than the reduced number or amount of the Offered Securities unless and until such securities have again been offered to the Purchasers in accordance with Section 4.10(b)(i) above. 


               (v) Upon the closing of the issuance, sale or exchange of all or less than all of the Refused Securities, the Purchasers shall acquire from the
Company, and the Company shall issue to the Purchasers, the number or amount of Offered Securities specified in the Notices of Acceptance, as reduced pursuant to Section 4.10(b)(iii) above if the Purchasers have so elected, upon the terms and
conditions specified in the Offer. 


               (vi) Any Offered Securities not acquired by the Purchasers or other persons in accordance with Section 4.10(b)(iii) above may not be issued,
sold or exchanged until they are again offered to the Purchasers under the procedures specified in this Agreement. 


          (c) The restrictions contained in subsections (a) and (b) of this Section 4.10 shall not apply in connection with the issuance of any Exempted Issuance. 


          (d) No Purchaser shall
be permitted to acquire any shares of Common Stock pursuant to Section 4.10(b) above if such acquisition,
together with any shares of Common Stock then owned by such Purchaser,  would exceed 9.9% of the Common
Stock then outstanding.

ARTICLE V. 

    MISCELLANEOUS


     5.1 Fees and Expenses. Except as otherwise set forth in this Agreement, each party shall pay the fees and
expenses of its advisers, counsel, accountants and other experts, if any, and all other expenses incurred by such party incident to the negotiation, preparation, execution, delivery and performance of this Agreement. The Company shall pay all stamp
and other taxes and duties levied in connection with the sale of the Shares. 


     5.2 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 and understandings, oral or written, with respect to such matters, which the parties acknowledge have been merged into such
documents, exhibits and schedules. 


     5.3 Notices. Any and all notices or other communications or deliveries required or permitted to be provided
hereunder shall be in writing and shall be deemed given and effective on the earliest of (a) the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached
hereto prior to 6:30 p.m. (New York City time) on a Trading Day, (b) the next Trading Day after the date of transmission, if such notice or communication is delivered via facsimile at the facsimile number set forth on the signature pages attached
hereto on a day that is not a Trading Day or later than 6:30 p.m. (New York City time) on any Trading Day, (c) the second Trading Day following the date of mailing, if sent by U.S. nationally recognized overnight courier service, or (d)
upon

18

  

  













actual receipt by the party to whom such notice is required to be given. The address for such notices and communications shall be as set forth on the signature pages attached hereto. 


     5.4 Amendments; Waivers.  No provision of this Agreement may be waived or amended except in a written
instrument signed, in the case of an amendment, by the Company and each Purchaser or, in the case of a waiver, by the party against whom enforcement of any such waiver is sought.  No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver of any subsequent default or a waiver of any other provision, condition or requirement hereof, nor shall any delay or omission of either party to
exercise any right hereunder in any manner impair the exercise of any such right. 


     5.5 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. 


     5.6 Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the parties and their successors and permitted
assigns. The Company may not assign this Agreement or any rights or obligations hereunder without the prior written consent of each Purchaser, except that such consent shall not be required in connection with any merger, consolidation, amalgamation
or similar transaction in which the Company is not the surviving corporation.  Any Purchaser may assign any or all of its rights under this Agreement to any Person to whom such Purchaser assigns or transfers any Shares, provided such transferee
agrees in writing to be bound, with respect to the transferred Shares, by the provisions hereof that apply to the “Purchasers”. 


     5.7 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 4.7. 


     5.8 Governing Law. All questions concerning the construction, validity, enforcement and interpretation of the
Transaction Documents shall be governed by and construed and enforced in accordance with the internal laws of the State of New York, without regard to the principles of conflicts of law thereof. Each party hereby irrevocably submits to the exclusive
jurisdiction of the state and federal courts sitting in The City of New York, Borough of Manhattan for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein (including
with respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that
such suit, action or proceeding is improper or inconvenient venue for such proceeding. Each party hereby irrevocably waives personal service of process and consents to process being served in any such suit, action or proceeding by mailing a copy
thereof via registered or certified mail or overnight delivery (with evidence of delivery) to such party at the address in effect for notices to it under this Agreement and agrees that such service shall constitute good and sufficient service of
process and notice thereof. Nothing contained herein

19

  

  













shall be deemed to limit in any way any right to serve process in any manner permitted by law. The parties hereby waive all rights to a trial by jury. If either party shall commence an action or proceeding to enforce any
provisions of the Transaction Documents, then the prevailing party in such action or proceeding shall be reimbursed by the other party for its attorneys’ fees and other costs and expenses incurred with the investigation, preparation and
prosecution of such action or proceeding. 


     5.9 Survival. The representations and warranties herein shall survive the Closing and delivery of the Shares.



     5.10 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. 


     5.11 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. 


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


     5.13 Replacement of Shares. If any certificate or instrument evidencing any Shares 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 Shares. 


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

20


  

  













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


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

(Signature Page Follows)

21

















     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. 


  	Company : Genta Incorporated  	Address for Notice:
	 	Two Connell Drive
	 	Berkeley Heights, NJ 07922
	 
	 	 
	By:	  /s/ William P. Keane 
	 	        

	 	Name: William P. Keane
	 	Title: Vice President, Chief Financial Officer

          Title: and Secretary 




 


[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK

SIGNATURE PAGES FOR PURCHASERS FOLLOW] 

22


  

  












[PURCHASER SIGNATURE PAGES TO GNTA SECURITIES PURCHASE AGREEMENT]


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

 

Name of Investing Entity: SMITHFIELD FIDUCIARY LLC

Signature of Authorized Signatory of Investing Entity:          /s/
Adam J. Chill             

Name of Authorized Signatory: Adam J. Chill

Title of Authorized Signatory: Authorized Signatory

Email Address of Authorized Entity: ari.storch@hcmny.com / adam.chill@hcmny.com
Address for Notice of Investing Entity:

c/o Highbridge Capital Management, LLC

9 West 57th Street, 27th Floor

New York, New York 10019

Facsimile: (212) 751-0755

Telephone: (212) 287-4720

Attention: Ari J. Stroch / Adam J. Chill

 

Subscription Amount: $11,250,000.00 

 

[SIGNATURE PAGES CONTINUE]

23













[PURCHASER SIGNATURE PAGES TO GNTA SECURITIES PURCHASE AGREEMENT]


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

 

Name of Investing Entity: Riverview Group, LLC

  Signature of Authorized Signatory of Investing Entity:          /s/
  Terry Feeney             

  Name of Authorized Signatory: Terry Feeney

  Title of Authorized
  Signatory: COO

  Email Address of Authorized Entity: 
Address for Notice of Investing Entity:

  Millenium Partners

666 Fifth Ave

New York, NY 10103


 

Subscription Amount: $11,250,000.00 
 

24