EXHIBIT
10.1

     

    


    GOFISH
CORPORATION

    


    SECURITIES
PURCHASE AGREEMENT

    


    Dated
as of December 3, 2008


    
      
         


      

      
         


        
          

        

      

      
         


      

    

     

    TABLE
OF CONTENTS

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          	 
      	 
      	 
      	
                                  Page

                                
	 
      	 
      	 
      	 
      
	
                                  1.

                                	
                                  Purchase
      and Sale of Securities

                                	
                                  1

                                
	 	 	 	 
	 
      	
                                  1.1

                                	
                                  Sale
      and Issuance of Securities

                                	
                                  1

                                
	 
      	
                                  1.2

                                	
                                  Closing

                                	
                                  2

                                
	 	 	 
	
                                  2.

                                	
                                  Representations
      and Warranties of the Company

                                	
                                  3

                                
	 	 	 	 
	 
      	
                                  2.1

                                	
                                  Subsidiaries

                                	
                                  3

                                
	 
      	
                                  2.2

                                	
                                  Organization
      and Qualification

                                	
                                  3

                                
	 
      	
                                  2.3

                                	
                                  Authorization;
      Enforcement

                                	
                                  4

                                
	 
      	
                                  2.4

                                	
                                  No
      Conflicts

                                	
                                  4

                                
	 
      	
                                  2.5

                                	
                                  Filings,
      Consents and Approvals

                                	
                                  4

                                
	 
      	
                                  2.6

                                	
                                  Issuance
      of the Securities

                                	
                                  5

                                
	 
      	
                                  2.7

                                	
                                  Capitalization

                                	
                                  5

                                
	 
      	
                                  2.8

                                	
                                  SEC
      Reports; Financial Statements

                                	
                                  6

                                
	
                                   
      

                                	
                                  2.9

                                	
                                  Material
      Changes; Undisclosed Events, Liabilities or Developments

                                	
                                  6

                                
	
                                   
      

                                	
                                  2.10

                                	
                                  Litigation

                                	
                                  7

                                
	
                                   
      

                                	
                                  2.11

                                	
                                  Employee
      Benefit Plans; Employee Matters

                                	
                                  7

                                
	 
      	
                                  2.12

                                	
                                  Labor
      Relations

                                	
                                  8

                                
	 
      	
                                  2.13

                                	
                                  Compliance

                                	
                                  8

                                
	 
      	
                                  2.14

                                	
                                  Regulatory
      Permits

                                	
                                  8

                                
	 
      	
                                  2.15

                                	
                                  Title
      to Assets

                                	
                                  8

                                
	 
      	
                                  2.16

                                	
                                  Patents
      and Trademarks

                                	
                                  9

                                
	 
      	
                                  2.17

                                	
                                  Insurance

                                	
                                  9

                                
	 
      	
                                  2.18

                                	
                                  Transactions
      With Affiliates and Employees

                                	
                                  10

                                
	 
      	
                                  2.19

                                	
                                  Sarbanes-Oxley;
      Internal Accounting Controls

                                	
                                  10

                                
	 
      	
                                  2.20

                                	
                                  Certain
      Fees

                                	
                                  10

                                
	 
      	
                                  2.21

                                	
                                  Private
      Placement

                                	
                                  11

                                
	 
      	
                                  2.22

                                	
                                  Investment
      Company

                                	
                                  11

                                
	 
      	
                                  2.23

                                	
                                  Registration
      Rights

                                	
                                  11

                                
	 
      	
                                  2.24

                                	
                                  Listing
      and Maintenance Requirements

                                	
                                  11

                                
	 
      	
                                  2.25

                                	
                                  Application
      of Takeover Protections

                                	
                                  11

                                
	 
      	
                                  2.26

                                	
                                  Tax
      Status

                                	
                                  11

                                
	 
      	
                                  2.27

                                	
                                  No
      General Solicitation.

                                	
                                  12

                                
	 
      	
                                  2.28

                                	
                                  Acknowledgment
      Regarding Investor’s Purchase of Securities

                                	
                                  12

                                
	 
      	
                                  2.29

                                	
                                  Contracts

                                	
                                  12

                                
	 
      	
                                  2.30

                                	
                                  Manipulation
      of Price.

                                	
                                  12

                                
	 
      	
                                  2.31

                                	
                                  Disclosure

                                	
                                  12

                                
	 	 	 
	
                                  3.

                                	
                                  Representations
      and Warranties of the Investors

                                	
                                  12

                                
	 	 	 	 
	 
      	
                                  3.1

                                	
                                  Organization;
      Authority

                                	
                                  13

                                
	 
      	
                                  3.2

                                	
                                  Investor
      Status

                                	
                                  13

                                
	 
      	
                                  3.3

                                	
                                  Non-U.S.
      Investors

                                	
                                  13

                                
	 
      	
                                  3.4

                                	
                                  Experience
      of Such Investor

                                	
                                  13

                                


                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
         


      

      
        -i-

        
          

        

      

      
         


      

    

    


    TABLE
OF CONTENTS

    (continued)

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              
                                                
                                                  
                                                    
                                                      
                                                        
                                                          
                                                            
                                                              
                                                                
                                                                  
                                                                    
                                                                      
                                                                        
                                                                          
                                                                            
                                                                              
                                                                                
                                                                                  
                                                                                    
                                                                                      
                                                                                        
                                                                                          
                                                                                            
                                                                                              
                                                                                                
                                                                                                  
                                                                                                    
                                                                                                      
                                                                                                        
                                                                                                          
                                                                                                            
                                                                                                              
                                                                                                                
                                                                                                                  
                                                                                                                    
                                                                                                                      
                                                                                                                        
                                                                                                                          	 	 	 	

                                                                                                                                  Page

                                                                                                                                
	 	 	 	 
	 
      	
                                                                                                                                  3.5

                                                                                                                                	
                                                                                                                                  General
      Solicitation

                                                                                                                                	
                                                                                                                                  14

                                                                                                                                
	 
      	
                                                                                                                                  3.6

                                                                                                                                	
                                                                                                                                  Short
      Sales and Confidentiality Prior To The Date Hereof

                                                                                                                                	
                                                                                                                                  14

                                                                                                                                
	 
      	
                                                                                                                                  3.7

                                                                                                                                	
                                                                                                                                  Communication
      of the Offer

                                                                                                                                	
                                                                                                                                  14

                                                                                                                                
	 
      	
                                                                                                                                  3.8

                                                                                                                                	
                                                                                                                                  Disclosure
      of Information

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  3.9

                                                                                                                                	
                                                                                                                                  Exculpation
      Among Investors

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  3.10

                                                                                                                                	
                                                                                                                                  Restricted
      Securities

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 	 	 
	
                                                                                                                                  4.

                                                                                                                                	
                                                                                                                                  Conditions
      to Investors’ Obligations at the Closing

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 	 	 	 
	 
      	
                                                                                                                                  4.1

                                                                                                                                	
                                                                                                                                  Representations
      and Warranties

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  4.2

                                                                                                                                	
                                                                                                                                  Performance

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  4.3

                                                                                                                                	
                                                                                                                                  Compliance
      Certificate

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  4.4

                                                                                                                                	
                                                                                                                                  Secretary’s
      Certificate

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  4.5

                                                                                                                                	
                                                                                                                                  Certificate
      of Designation

                                                                                                                                	
                                                                                                                                  15

                                                                                                                                
	 
      	
                                                                                                                                  4.6

                                                                                                                                	
                                                                                                                                  Permits,
      Qualifications and Consents

                                                                                                                                	
                                                                                                                                  16

                                                                                                                                
	 
      	
                                                                                                                                  4.7

                                                                                                                                	
                                                                                                                                  Proceedings
      and Documents

                                                                                                                                	
                                                                                                                                  16

                                                                                                                                
	 
      	
                                                                                                                                  4.8

                                                                                                                                	
                                                                                                                                  Opinions
      of Company Counsel

                                                                                                                                	
                                                                                                                                  16

                                                                                                                                
	 
      	
                                                                                                                                  4.9

                                                                                                                                	
                                                                                                                                  Investors’
      Rights Agreement

                                                                                                                                	
                                                                                                                                  16

                                                                                                                                
	 
      	
                                                                                                                                  4.10

                                                                                                                                	
                                                                                                                                  Board
      of Directors

                                                                                                                                	
                                                                                                                                  16

                                                                                                                                
	 
      	
                                                                                                                                  4.11

                                                                                                                                	
                                                                                                                                  Existing
      Note Holders

                                                                                                                                	
                                                                                                                                  16

                                                                                                                                
	 
      	
                                                                                                                                  4.12

                                                                                                                                	
                                                                                                                                  Management
      Options

                                                                                                                                	
                                                                                                                                  17

                                                                                                                                
	 
      	
                                                                                                                                  4.13

                                                                                                                                	
                                                                                                                                  By-Laws
      Amendment

                                                                                                                                	
                                                                                                                                  17

                                                                                                                                
	 
      	
                                                                                                                                  4.14

                                                                                                                                	
                                                                                                                                  HSR
      Filing

                                                                                                                                	
                                                                                                                                  17

                                                                                                                                
	 
      	
                                                                                                                                  4.15

                                                                                                                                	
                                                                                                                                  Board
      Approval

                                                                                                                                	
                                                                                                                                  17

                                                                                                                                
	 
      	
                                                                                                                                  4.16

                                                                                                                                	
                                                                                                                                  Management
      Lock-Up Letters

                                                                                                                                	
                                                                                                                                  17

                                                                                                                                
	 
      	
                                                                                                                                  4.17

                                                                                                                                	
                                                                                                                                  Consents;
      Waivers

                                                                                                                                	
                                                                                                                                  17

                                                                                                                                
	 
      	
                                                                                                                                  4.18

                                                                                                                                	
                                                                                                                                  Indemnification
      Agreements

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 
      	
                                                                                                                                  4.19

                                                                                                                                	
                                                                                                                                  Management
      Rights Letter

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 	 	 
	
                                                                                                                                  5.

                                                                                                                                	
                                                                                                                                  Conditions
      to the Company’s Obligations at Closing

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 	 	 	 
	 
      	
                                                                                                                                  5.1

                                                                                                                                	
                                                                                                                                  Representations
      and Warranties

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 
      	
                                                                                                                                  5.2

                                                                                                                                	
                                                                                                                                  Payment
      of Purchase Price

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 
      	
                                                                                                                                  5.3

                                                                                                                                	
                                                                                                                                  Permits,
      Qualifications and Consents

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 
      	
                                                                                                                                  5.4

                                                                                                                                	
                                                                                                                                  HSR
      Filing

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 
      	
                                                                                                                                  5.5

                                                                                                                                	
                                                                                                                                  Board
      Approval

                                                                                                                                	
                                                                                                                                  18

                                                                                                                                
	 	 	 	 
	      
                                                                                                                                  6.

                                                                                                                                	      
                                                                                                                                  Conditions
      to Investors’ Obligations at any Subsequent Closing

                                                                                                                                	      
                                                                                                                                  18

                                                                                                                                
	 	      
                                                                                                                                  6.1

                                                                                                                                	Opinions
      of Company Counsel	      
                                                                                                                                  18

                                                                                                                                
	 	      
                                                                                                                                  6.2

                                                                                                                                	Requisite
      Approval	      
                                                                                                                                  19

                                                                                                                                
	 	      
                                                                                                                                  6.3

                                                                                                                                	Amended
      Articles	      
                                                                                                                                  19

                                                                                                                                
	 	      
                                                                                                                                  6.4

                                                                                                                                	Management
      Lockup Agreements; Employment Agreements; Change of Control Waiver
      Letters	      
                                                                                                                                  19

                                                                                                                                
	 	      
                                                                                                                                  6.5

                                                                                                                                	Election
      of Directors	      
                                                                                                                                  19

                                                                                                                                


                                                                                                                        

                                                                                                                      

                                                                                                                    

                                                                                                                  

                                                                                                                

                                                                                                              

                                                                                                            

                                                                                                          

                                                                                                        

                                                                                                      

                                                                                                    

                                                                                                  

                                                                                                

                                                                                              

                                                                                            

                                                                                          

                                                                                        

                                                                                      

                                                                                    

                                                                                  

                                                                                

                                                                              

                                                                            

                                                                          

                                                                        

                                                                      

                                                                    

                                                                  

                                                                

                                                              

                                                            

                                                          

                                                        

                                                      

                                                    

                                                  

                                                

                                              

                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

     

    
      
         


      

      
        -ii-

        
          

        

      

      
         


      

    


    TABLE
OF CONTENTS

    (continued)

     

    
      
        
          
            
              
                	 	 	 	
                        Page

                      
	 	 	 
	      
                        7.

                      	      
                        Miscellaneous

                      	      
                        19

                      
	 	 	 	 
	 
      	
                        7.1

                      	
                        Board
      of Directors

                      	
                        19

                      
	 
      	
                        7.2

                      	
                              
                          Post-Closing
      Covenants

                        

                      	
                        19

                      
	 
      	
                        7.3

                      	
                        Survival
      of Representations, Warranties and Covenants

                      	
                        20

                      
	 
      	
                        7.4

                      	
                              
                          Successors
      and Assigns

                        

                      	
                        20

                      
	 
      	
                        7.5

                      	
                        Governing
      Law; Venue

                      	
                        21

                      
	 
      	
                        7.6

                      	
                              
                          Waiver
      of Right to Jury Trial

                        

                      	
                        21

                      
	 
      	
                        7.7

                      	
                        Acknowledgment;
      Waiver of Conflicts

                      	
                        21

                      
	 
      	
                        7.8

                      	
                        Securities
      Law Disclosure; Publicity

                      	
                        21

                      
	 
      	
                        7.9

                      	
                        Counterparts

                      	
                        22

                      
	 
      	
                        7.10

                      	
                        Titles
      and Subtitles

                      	
                        22

                      
	 
      	
                        7.11

                      	
                        Notices

                      	
                        22

                      
	 
      	
                        7.12

                      	
                        Finder’s
      Fee

                      	
                        22

                      
	 
      	
                        7.13

                      	
                        Expenses

                      	
                        22

                      
	 	      
                        7.14

                      	      
                        Amendments
      and Waivers

                      	      
                        23

                      
	 	      
                        7.15

                      	      
                        Indemnification
      of Investors

                      	      
                        23

                      
	 	      
                        7.16

                      	      
                        Operation
      of Business

                      	      
                        24

                      
	 	      
                        7.17

                      	      
                        Specific
      Performance

                      	      
                        24

                      
	 	      
                        7.18

                      	      
                        Severability

                      	      
                        24

                      
	 	      
                        7.19

                      	      
                        Aggregation
      of Stock

                      	      
                        24

                      
	 	      
                        7.20

                      	      
                        Further
      Assurances

                      	      
                        24

                      
	 	      
                        7.21

                      	      
                        Successors
      and Assigns

                      	      
                        25

                      
	 	      
                        7.22

                      	      
                        Entire
      Agreement

                      	      
                        25

                      


              

            

          

        

      

    

    


    SCHEDULES
AND EXHIBITS

    


    
      
        	
                SCHEDULE
      A-1

              	
                Schedule
      of Investors – Closing

              
	
                SCHEDULE
      A-2

              	
                Schedule
      of Investors – General Subsequent Closing

              
	
                SCHEDULE
      A-3

              	
                Schedule
      of Investors – List of Section 4.11 Potential Investors

              
	
                SCHEDULE
      B

              	
                Disclosure
      Schedules

              
	
                SCHEDULE
      4.12

              	
                List
      of Management Options

              
	
                SCHEDULE
      4.16

              	
                List
      of Management Lockup Signatories

              
	
                SCHEDULE
      6.2(b)

              	
                List
      of Remaining Management Lock-Up Agreements

              
	
                SCHEDULE
      6.2(c)

              	
                List
      of Remaining Employment Agreements

              
	                                                                 
      	 
      
	
                EXHIBIT
      A

              	
                Certificate
      of Designation

              
	
                EXHIBIT
      B

              	
                Amendment
      to Articles of Incorporation

              
	
                EXHIBIT
      C

              	
                Warrant

              
	
                EXHIBIT
      D-1

              	
                Opinion
      of McDonald Carano Wilson LLP

              
	
                EXHIBIT
      D-2

              	
                Opinion
      of Morrison & Foerster LLP

              
	
                EXHIBIT
      E

              	
                Investors’
      Rights Agreement

              
	
                EXHIBIT
      F

              	
                Stock
      Option Agreement

              
	
                EXHIBIT
      G

              	
                Stock
      Option Agreement (Vesting Only Upon Certain Events)

              
	
                EXHIBIT
      H

              	
                Lock-Up
      Letter

              
	
                EXHIBIT
      I

              	
                Indemnification
      Agreement

              


      

    

     

     

    
      
         


      

      
        -iii-

        
          

        

      

      
         


      

    


    GOFISH
CORPORATION

     

    SECURITIES
PURCHASE AGREEMENT

    


    THIS
SECURITIES PURCHASE AGREEMENT (this “Agreement”) is made
as of December 3, 2008 by and among GoFish Corporation, a Nevada corporation
(the “Company”), and the
investors listed on Schedules A-1,
A-2 and A-3 hereto, each of
which is herein referred to as an “Investor.”

     

    THE
PARTIES HEREBY AGREE AS FOLLOWS:

     

    1.           Purchase and Sale of
Securities.

     

    1.1           Sale and Issuance of
Securities.

     

    (a)           The
Company shall adopt and file with the Secretary of State of the State of Nevada
on or before the Closing (as defined below) the Certificate of Designation of
Rights, Preferences, Privileges and Restrictions of Series A Preferred Stock of
the Company in the form attached hereto as Exhibit A (the
“Certificate of
Designation”).   The Series A Preferred Stock, par value
$0.001 per share (the “Series A Preferred
Stock”), of the Company shall have the rights, preferences, privileges
and restrictions set forth in the Certificate of Designation.  Subject
to the terms and conditions of this Agreement, each Investor agrees, severally
and not jointly, to purchase at the Closing, and the Company agrees to sell and
issue to each Investor at the Closing, that number of (i) shares of the
Company’s Series A Preferred Stock set forth opposite such Investor’s name on
Schedule A-1
hereto under the heading “Closing” and (ii) warrants (the “Warrants”) to
purchase shares of the Company’s common stock, par value $0.001 per share (the
“Common
Stock”), set forth opposite such Investor’s name on Schedule A-1 hereto
under the heading “Closing,” for the aggregate purchase price set forth opposite
such Investor’s name on Schedule A-1 hereto
under the heading “Closing.”  The Series A Preferred Stock and
Warrants are collectively referred to herein as the “Securities.”  The
Securities are being sold as units at a purchase price of $4.00 per unit, with
each unit consisting of (i) one share of Series A Preferred Stock and (ii) a
Warrant to purchase eight shares of the Company’s Common Stock at an exercise
price of $0.20 per share.

     

    (b)           At
one or more Subsequent Closings (as defined below), all of which shall be held
within fifteen (15) days of the Closing (the “General Subsequent Closing
Deadline”) and subject to the terms and conditions of this Agreement,
each Investor agrees, severally and not jointly, to purchase at a Subsequent
Closing, and the Company agrees to sell and issue to each Investor at such
Subsequent Closing, that number of (i) shares of the Company’s Series A
Preferred Stock set forth opposite such Investor’s name on Schedule A-2
hereto under the heading “Subsequent Closing” and (ii) the number of Warrants
set forth opposite such Investor’s name on Schedule A-2 hereto
under the heading “Subsequent Closing,” for the aggregate purchase price set
forth opposite such Investor’s name on Schedule A-2 hereto
under the heading “Subsequent Closing.”


    
      
         


      

      
        1

        
          

        

      

      
         


      

    


    (c)           At
any Subsequent Closing, the Company may sell up to an additional $7,010,996 of
Securities, on the same terms and conditions set forth herein, to additional
purchasers listed on Schedule A-3 in
connection with the conversion of securities of the Company that are outstanding
as of the date hereof in accordance with Section 4.11 of this
Agreement.  Any such purchaser shall execute and deliver a counterpart
signature page to, and thereby, without further action by any Investor, become a
party to and be deemed an Investor under this Agreement, and all schedules and
exhibits hereto shall automatically be updated to reflect such purchaser as a
party hereto.

     

    (d)           At
the Closing or any Subsequent Closing, and at the sole option of Rembrandt
Venture Partners Fund Two, L.P. and Rembrandt Venture Partners Fund Two-A, L.P.
(collectively, “Rembrandt”) within
sixty (60) days after the Closing (the “Rembrandt Subsequent Closing
Deadline”), the Company shall sell and Rembrandt shall purchase up to an
additional $2,500,000 of Securities, on the same terms and conditions set forth
herein.  To the extent that Rembrandt has not already done so at the
Closing, Rembrandt shall execute and deliver a counterpart signature page to,
and thereby, without further action by any Investor, become a party to and be
deemed an Investor under this Agreement and the Investor Rights Agreement, and
all schedules and exhibits hereto shall automatically be updated to reflect such
purchaser as a party hereto.

     

    (e)           Following
the Closing but prior to any Subsequent Closing, the Company shall adopt, and
the Investors purchasing Securities at the Closing agree to vote all shares of
capital stock of the Company then owned by such Investor in favor of the
adoption of, an Amendment to the Company’s Articles of Incorporation in the form
attached hereto as Exhibit B (the
“Amended
Articles”) in order to increase the authorized shares of capital stock of
the Company (the “Requisite
Approval”).  Promptly following receipt of the Requisite
Approval and prior to any Subsequent Closing, the Company shall adopt and file
the Amended Articles with the Secretary of State of the State of
Nevada.

     

    1.2           Closing.

     

    (a)           Closing.  The
initial purchase and sale of the Securities shall take place at the offices of
Morrison & Foerster LLP, 425 Market Street, San Francisco, CA 94105, at 9:00
a.m. Pacific time, on December 3, 2008 (the “Closing”).  Except
as set forth in Section 1.1(d), the purchase and sale of the Securities at a
subsequent closing shall take place at the offices of Morrison & Foerster
LLP, 425 Market Street, San Francisco, CA 94105, on or before any General
Subsequent Closing Deadline (the “Subsequent
Closing”).  The purchase and sale of the Securities at a
subsequent closing to Rembrandt pursuant to Section 1.1(d) shall take place at
the offices of Morrison & Foerster LLP, 425 Market Street, San Francisco, CA
94105, on or before the Rembrandt Subsequent Closing Deadline and any such
closing shall be deemed a Subsequent Closing
for purposes of this Agreement.  Schedule A-2 or Schedule A-3, as
applicable, of this Agreement shall be automatically updated by the Company to
reflect the actual date of any Subsequent Closing.

     

    (b)           Delivery.  At
the Closing and each Subsequent Closing, as applicable:


    
      
         


      

      
        2

        
          

        

      

      
         


      

    


    (i)           the
Company shall deliver to each Investor a certificate representing the Series A
Preferred Stock being sold to such Investor as listed on Schedule A-1, Schedule
A-2 or Schedule
A-3 hereto, applicable, and a warrant, in the form attached hereto as
Exhibit C,
evidencing the Warrants being sold to such Investor as listed on Schedule A-1, Schedule
A-2 or Schedule
A-3 hereto, as applicable; and

     

    (ii)           each
Investor will deliver to the Company by wire transfer to an account designated
by the Company an amount equal to the purchase price for the Securities being
purchased by the Investor as listed on Schedule A-1, Schedule
A-2 or Schedule
A-3 hereto, as applicable.

     

    2.           Representations and
Warranties of the Company.  The Company
hereby represents and warrants to each Investor that, as of the date hereof and
as of the Closing and except as set forth on the Disclosure Schedules attached
hereto as Schedule
B (the “Disclosure
Schedules”), which exceptions shall be deemed to be representations and
warranties as if made hereunder:

     

    2.1           Subsidiaries.  All
of the subsidiaries of the Company (each, a “Subsidiary”) are set
forth on Schedule
2.1.  The Company owns, directly or indirectly, all of the
capital stock or other equity interests of each Subsidiary free and clear of any
lien, charge, security interest, encumbrance, right of first refusal, preemptive
right or other restriction (collectively, “Liens”), and all of
the issued and outstanding shares of capital stock of each Subsidiary are
validly issued and are fully paid, non-assessable and free of preemptive and
similar rights to subscribe for or purchase securities.

     

    2.2           Organization and
Qualification.  The Company and each of the Subsidiaries is an
entity duly incorporated or otherwise organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or
organization, as applicable, with the requisite power and authority to own and
use its properties and assets and to carry on its business as currently
conducted.  Neither the Company nor any Subsidiary is in violation or
default of any of the provisions of its respective certificate or articles of
incorporation, bylaws or other organizational or charter
documents.  Each of the Company and the Subsidiaries is duly qualified
to conduct business and is in good standing as a foreign corporation or other
entity in each jurisdiction in which the nature of the business conducted or
property owned by it makes such qualification necessary, except where the
failure to be so qualified or in good standing, as the case may be, would not
have or reasonably be expected to result in: (i) a material adverse effect on
the legality, validity or enforceability of this Agreement, the Investors’
Rights Agreement, the Warrants and any other documents or agreements executed in
connection with the transactions contemplated hereunder (collectively, the
“Transaction
Documents”), (ii) a material adverse effect on the results of operations,
assets, business, or financial condition of the Company and the Subsidiaries,
taken as a whole or (iii) a material adverse effect on the Company’s or
Subsidiary’s ability to perform in any material respect on a timely basis its
obligations under any Transaction Document (any of (i) or (ii), a “Material Adverse
Effect”) and no action, claim, suit, investigation or proceeding
(including, without limitation, an informal investigation or partial proceeding,
such as a deposition), whether commenced or threatened (a “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.


    
      
         


      

      
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    2.3           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, the Board of Directors of the Company (the “Board of Directors”)
or the Company’s stockholders in connection therewith.  Each
Transaction Document to which it is a party has been (or upon delivery will have
been) duly executed by the Company and, when delivered in accordance with the
terms hereof and thereof, will constitute the valid and binding obligation of
the Company enforceable against the Company in accordance with its terms,
except: (i) as limited by general equitable principles and applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors’ rights generally, (ii) as
limited by laws relating to the availability of specific performance, injunctive
relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.

     

    2.4           No
Conflicts.  The execution, delivery and performance by the
Company of the Transaction Documents, the issuance and sale of the Securities
and the consummation by it of the other transactions contemplated hereby and
thereby, including, without limitation, the issuance by the Company of the
shares of Common Stock issuable upon exercise of the Warrants, 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, (ii) conflict with, or constitute a default
(or an event that with notice or lapse of time or both would become a default)
under, result in the creation of any Lien upon any of the properties or assets
of the Company or any Subsidiary, or give to others any rights of notice,
termination, amendment, acceleration or cancellation (with or without notice,
lapse of time or both) of, any agreement, credit facility, debt or other
instrument (evidencing a Company or Subsidiary debt or otherwise) or other
understanding to which the Company or any Subsidiary is a party or by which any
property or asset of the Company or any Subsidiary is bound or affected, or
(iii) conflict with or result in a violation of any law, rule, regulation,
order, judgment, injunction, decree or other restriction of any court or
governmental authority to which the Company or a Subsidiary is subject
(including federal and state securities laws and regulations), or by which any
property or asset of the Company or a Subsidiary is bound or affected; except in
the case of each of clauses (ii) and (iii), such as would not have or reasonably
be expected to result in a Material Adverse Effect.

     

    2.5           Filings, Consents and
Approvals.  Each approval, consent, order, authorization,
designation, declaration or filing by or with any regulatory, administrative or
other governmental body necessary in connection with the execution and delivery
by the Company of the Transaction Documents and the consummation of the
transactions contemplated hereby and thereby has been obtained or made and is in
full force and effect.


    
      
         


      

      
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    2.6           Issuance of the
Securities.  The Series A Preferred Stock and Warrants are duly
authorized and, when issued and paid for in accordance with the applicable
Transaction Documents, will be duly and validly issued, fully paid and
nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents, or any
applicable state and federal securities laws.  The shares of Common
Stock issuable upon conversion of the Series A Preferred Stock, when issued in
accordance with the terms of the Certificate of Designation, will be validly
issued, fully paid and nonassessable, free and clear of all Liens imposed by the
Company other than restrictions on transfer provided for in the Transaction
Documents or any applicable state and federal securities laws. The shares of
Common Stock issuable upon exercise of the Warrants, when issued in accordance
with the terms of the Transaction Documents, will be validly issued, fully paid
and nonassessable, free and clear of all Liens imposed by the Company other than
restrictions on transfer provided for in the Transaction Documents or any
applicable state and federal securities laws.  The Company has
reserved from its duly authorized capital stock the maximum number of shares of
Common Stock issuable upon the exercise of the Warrants and the conversion of
the Series A Preferred Stock.  The Company has not, and to the
knowledge of the Company, no Affiliate of the Company has sold, offered for sale
or solicited offers to buy or otherwise negotiated 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
Investors, or that would be integrated with the offer or sale of the Securities
for purposes of the rules and regulations of any of the following markets or
exchanges on which the Common Stock is listed or quoted for trading on the date
in question: the Pink OTC Markets, the OTC Bulletin Board, the American Stock
Exchange, the Nasdaq Capital Market, the Nasdaq Global Market, the Nasdaq Global
Select Market or the New York Stock Exchange (each, a “Trading
Market”).

     

    2.7           Capitalization.  The
number of shares and type of all authorized, issued and outstanding capital
stock of the Company and each of its Subsidiaries, and all shares of capital
stock reserved for issuance under the various option and incentive plans of the
Company and each of its Subsidiaries, is specified in Schedule
2.7.  Except as specified in Schedule 2.7, no
securities of the Company or its Subsidiaries are entitled to preemptive or
similar rights, and no individual, 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 (each, a “Person”) has any
right of first refusal, preemptive right, right of participation, or any similar
right to participate in the transactions contemplated by the Transaction
Documents.  Except as specified in Schedule 2.7, 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 capital stock of the Company or its
Subsidiaries, or contracts, commitments, or arrangements by which the Company or
any Subsidiary is or may become bound to issue additional shares of capital
stock, or securities or rights convertible or exchangeable into shares of
capital stock. Neither the issue and sale of the Securities nor the issuance by
the Company of the shares of Common Stock issuable upon exercise of the Warrants
will , immediately or with the passage of time, obligate the Company to issue
shares of capital stock or other securities to any Person (other than the
Investors) and will not result in a right of any holder of Company securities to
adjust the exercise, conversion, exchange or reset price under such
securities.  All of the outstanding shares of capital stock of the
Company and its Subsidiaries 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 or others
is required for the issuance and sale of the Securities or the issuance by the
Company of the shares of Common Stock issuable upon exercise of the
Warrants.  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.  Schedule 2.7 includes
a complete and true listing of (i) the number of shares and type of all
authorized, issued and outstanding capital stock and options or warrants to
receive capital stock of the Company and each Subsidiary, and (ii) all shares of
capital stock reserved for issuance under the various option and incentive plans
of the Company and each of its Subsidiaries, in each case, as of immediately
following the Closing (assuming the sale and issuance of the maximum number of
securities of the Company contemplated by this Agreement at the Closing and any
Subsequent Closing, including the transactions contemplated by Sections 4.11 and
4.12).


    
      
         


      

      
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    2.8           SEC Reports; Financial
Statements.  The Company has filed all reports, schedules,
forms, statements and other documents required to be filed by the Company under
the Securities Act of 1933, as amended (the “Securities Act”) or
the Securities Exchange Act of 1934, as amended (the “Exchange Act”),
including pursuant to Section 13(a) or 15(d) thereof, for the two (2) years
preceding the date hereof (the foregoing materials being collectively referred
to herein as the “SEC
Reports”) on a timely basis or has received a valid extension of such
time of filing and has filed any such SEC Reports prior to the expiration of any
such extension.  As of their respective dates, the SEC Reports
complied in all material respects with the requirements of the Securities Act
and the Exchange Act and the rules and regulations of the Securities and
Exchange Commission (the “Commission”)
promulgated thereunder, as applicable, and none of the SEC Reports, when filed,
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading. The financial statements of the Company included in the SEC Reports
comply in all material respects with applicable accounting requirements and the
rules and regulations of the Commission with respect thereto as in effect at the
time of filing.  Such financial statements have been prepared in
accordance with United States generally accepted accounting principles applied
on a consistent basis during the periods involved (“GAAP”), except as may
be otherwise specified in such financial statements or the notes thereto and
except that unaudited financial statements may not contain all footnotes
required by GAAP, and fairly present in all material respects the financial
position of the Company and its consolidated subsidiaries as of and for the
dates thereof and the results of operations and cash flows for the periods then
ended, subject, in the case of unaudited statements, to normal, immaterial,
year-end audit adjustments.  No other information provided by or on
behalf of the Company to the Investors which is not included in the SEC Reports
contains any untrue statement of a material fact or omits 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.

     

    2.9           Material Changes;
Undisclosed Events, Liabilities or Developments.  Since the
date of the latest audited financial statements included within the SEC Reports,
except as specifically disclosed in a subsequent SEC Report filed prior to the
date hereof: (i) there has been no event, occurrence or development that has had
or that could result in a Material Adverse Effect, (ii) the Company has not
incurred any liabilities (contingent or otherwise) other than (A) trade payables
and accrued expenses incurred in the ordinary course of business consistent with
past practice and (B) liabilities not required to be reflected in the Company’s
financial statements pursuant to GAAP or disclosed in filings made with the
Commission and (iii) 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.  The Company does not have pending before the Commission any
request for confidential treatment of information.


    
      
         


      

      
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    2.10           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 Securities or the shares of Common Stock
issuable upon exercise of the Warrants, or (ii) could, if there were an
unfavorable decision, have or reasonably be expected to result in, a Material
Adverse Effect.  Neither the Company nor any Subsidiary, nor any
director or officer thereof, is or has been the subject of any Action involving
a claim of violation of or liability under federal or state securities laws or a
claim of breach of fiduciary duty.  There has not been, and to the
knowledge of the Company, there is not pending or contemplated, any
investigation by the Commission involving the Company or any current or former
director or 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.

     

    2.11           Employee Benefit Plans;
Employee Matters.  The consummation of the transactions
contemplated by this Agreement will not (i) entitle any current or former
employee or other service provider of the Company to severance benefits or any
other payment, compensation or benefit (including forgiveness of indebtedness),
except as expressly provided by this Agreement, or (ii) accelerate the time of
payment or vesting, or increase the amount of compensation or benefit due any
such employee or service provider, alone or in conjunction with any other
possible event (including termination of employment).  Except as
disclosed in the SEC Reports, the Company does not have any employment
agreements, or any other similar agreements that contain any severance or
termination pay liabilities or obligations, that are not filed as exhibits to
the SEC Reports.  To the Company's knowledge, no employees of the
Company or any Subsidiary are in violation of any term of any material
employment contract, patent disclosure agreement, noncompetition agreement, or
any restrictive covenant to a former employer relating to the right of any such
employee to be employed by the Company or any Subsidiary because of the nature
of the business conducted or presently proposed to be conducted by the Company
or any Subsidiary or to the use of trade secrets or proprietary information of
others. No key employee of the Company or any Subsidiary has given written
notice to the Company or any Subsidiary, and neither the Company nor any
Subsidiary are otherwise aware, that any such key employee intends to terminate
his or her employment with the Company or any Subsidiary.


    
      
         


      

      
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    2.12           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 or any Subsidiary which could reasonably be expected to result in a
Material Adverse Effect.  None of the Company’s or its Subsidiaries’
employees is a member of a union that relates to such employee’s relationship
with the Company or such Subsidiary, and neither the Company nor any of its
Subsidiaries is a party to a collective bargaining agreement, and the Company
and its Subsidiaries believe that their relationships with their employees are
good.  The Company and its Subsidiaries are in compliance with all
U.S. federal, state, local and foreign laws and regulations relating to
employment and employment practices, terms and conditions of employment and
wages and hours, except where the failure to be in compliance would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.

     

    2.13           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, contract or instrument to which it is a party
or by which it or any of its properties is bound in writing (whether or not such
default or violation has been waived), (ii) is in violation of any order, writ
or decree of any court, arbitrator or governmental body or (iii) is or has been
in violation of any statute, rule or regulation of any governmental authority,
including without limitation all foreign, federal, state and local laws
applicable to its business and all such laws that affect the environment, except
in each case as would not have or reasonably be expected to result in a Material
Adverse Effect.  The execution, delivery and performance of the
Transaction Agreements and the consummation of the transactions contemplated by
the Transaction Agreements will not result in any such violation or be in
conflict with or constitute, with or without the passage of time and giving of
notice, either (i) a default under any of the foregoing or (ii) an event which
results in the creation of any lien, charge or encumbrance upon any assets of
the Company or any Subsidiary or the suspension, revocation, forfeiture, or
nonrenewal of any material permit or license applicable to the Company or any
Subsidiary.

     

    2.14           Regulatory
Permits.  The Company and the Subsidiaries currently possess
all certificates, authorizations and permits issued by the appropriate federal,
state, local or foreign regulatory authorities necessary to conduct their
respective businesses as described in the SEC Reports, except where the failure
to possess such permits could not 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.

     

    2.15           Title to
Assets.  The Company and the Subsidiaries have good and
marketable title in fee simple to all real property owned by them 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 with which the Company and the Subsidiaries
are in compliance.


    
      
         


      

      
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    2.16           Patents and
Trademarks.  The Company and the Subsidiaries own, or have
sufficient rights to use, all patents, patent applications, trademarks,
trademark applications, service marks, trade names, trade secrets, inventions,
copyrights, licenses, domain names, and other intellectual property rights and
similar rights as described in the SEC Reports as necessary or material for use
in connection with their respective businesses (collectively, the “Intellectual Property
Rights”).  There are no outstanding options, licenses,
agreements, claims, encumbrances or shared ownership of interests of any kind
relating to the Intellectual Property Rights, nor is the Company or any
Subsidiary bound by or a party to any options, licenses or agreements of any
kind with respect to the patents, patent applications, trademarks, trademark
applications, service marks, trade names, trade secrets, inventions, copyrights,
licenses, domain names, information, or other proprietary rights and/or
processes of any other Person, except for standard generally commercially
available end-user, object code, internal-use software license
agreements.  Neither the Company nor any Subsidiary has received a
notice (written or otherwise) that any of the Intellectual Property Rights used
by the Company or any Subsidiary has violated or, by conducting its business,
would violate any of the patents, trademarks, service marks, tradenames,
copyrights, trade secrets, mask works or other proprietary rights or processes
of any other Person, and neither Company nor any of its Subsidiaries has any
specific reason to believe any such notice may be forthcoming.  To the
knowledge of the Company solely with respect to patents and patent applications,
all such Intellectual Property Rights are enforceable and there is no existing
infringement by another Person of any of the Intellectual Property
Rights.  The Company and its Subsidiaries have taken reasonable
security measures to protect the secrecy, confidentiality and value of all of
their intellectual properties, except where failure to do so would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.  Each present and former employee and officer of the
Company and its Subsidiaries has executed a proprietary information and
inventions agreement, and each consultant to the Company and its Subsidiaries
has executed a Consulting Agreement either in the forms provided to Investor’s
counsel or a substantially similar form.  The Company and its
Subsidiaries are not aware that any of their present and former employees,
officers or consultants are in violation thereof, and the Company and its
Subsidiaries will use its commercially reasonable efforts to prevent any such
violation.  All Persons who have had access to Company or Subsidiary
trade secrets or confidential information have signed a customary non-disclosure
and non-use agreement not containing a “residuals” clause or similar
provision.  To the extent the Company or any of its Subsidiaries uses
any “open source” or “copyleft” software or is a party to “open” or “public
source” or similar licenses (including, but not limited to, the GNU General
Public License (GPL), GNU Lesser General Public License (LGPL), Mozilla Public
License (MPL), and the Common Development and Distribution License (CDDL)), the
Company and its Subsidiaries are not required to make any public disclosure or
to make available any source code or other Intellectual Property Right either
used, developed, or modified by Company or any Subsidiary.

     

    2.17           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 are
engaged.  The Company has provided to the Investors a true and correct
copy of the Company’s directors and officers liability insurance policy and a
copy of the Company’s D&O excess policy.


    
      
         


      

      
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    2.18           Transactions With Affiliates
and Employees.  Except as set forth in the SEC Reports, none of
the officers or directors of the Company or any Subsidiary and, to the knowledge
of the Company, none of the employees of the Company or any Subsidiary is
presently a party to any transaction with the Company or any Subsidiary,
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 $120,000,
other than for: (i) payment of salary or consulting fees for services rendered,
(ii) reimbursement for expenses incurred on behalf of the Company in the
ordinary course of business and (iii) other employee benefits, including stock
option agreements under any stock option plan of the Company.

     

    2.19           Sarbanes-Oxley; Internal
Accounting Controls.  Except as set forth in the SEC Reports,
the Company and each Subsidiary is in material compliance with all provisions of
the Sarbanes-Oxley Act of 2002 (“Sarbanes-Oxley”) and
any and all rules and regulations promulgated by the Commission thereunder which
are applicable to it as of the date hereof.  The Company and the
Subsidiaries maintain a system of internal accounting controls (i) sufficient to
provide reasonable assurance that:  (A) transactions are executed in
accordance with management’s general or specific authorizations, (B)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain asset accountability, (C)
access to assets is permitted only in accordance with management’s general or
specific authorization, and (D) the recorded accountability for assets is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any difference, and (ii) including, but not limited to,
disclosure controls and procedures, internal controls over accounting matters
and financial reporting (collectively, “Internal Controls”)
that comply with the Securities Act, the Exchange Act and Sarbanes-Oxley and the
rules and regulations of each applicable Trading Market on which the Company’s
securities are traded. The Company’s certifying officers have evaluated the
effectiveness of the Company’s and Subsidiary’s disclosure controls and
procedures as of the end of the period covered by the Company’s most recently
filed periodic report under the Exchange Act (such date, the “Evaluation
Date”).  The Company presented in its most recently filed
periodic report under the Exchange Act the conclusions of the certifying
officers about the effectiveness of the disclosure controls and procedures based
on their evaluations as of the Evaluation Date.  Since the Evaluation
Date, there have been no changes in the Company’s or Subsidiary’s internal
control over financial reporting (as such term is defined in the Exchange Act)
that has materially affected, or is reasonably likely to materially affect, the
Company’s or Subsidiary’s internal control over financial
reporting.

     

    2.20           Certain
Fees.  Except as may be disclosed on the Disclosure Schedules,
no brokerage or finder’s fees or commissions are or will be payable by the
Company to any broker, financial advisor or consultant, finder, placement agent,
investment banker, bank or other Person with respect to the transactions
contemplated by the Transaction Documents.  The Investors shall have
no obligation with respect to any fees or with respect to any claims made by or
on behalf of other Persons for fees of a type contemplated in this Section that
may be due in connection with the transactions contemplated by the Transaction
Documents.


    
      
         


      

      
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    2.21           Private
Placement.  Assuming the accuracy of the Investors’
representations and warranties set forth in Section 3, no registration under the
Securities Act is required for the offer and sale of the Securities by the
Company to the Investors as contemplated hereby or the issuance by the Company
of the shares of Common Stock issuable upon exercise of the Warrants. Neither
the issuance and sale of the Securities hereunder nor the issuance by the
Company of the shares of Common Stock issuable upon exercise of the Warrants
contravenes the rules and regulations of the OTC Bulletin Board.

     

    2.22           Investment
Company.  The Company is not, and immediately after receipt of
payment for the Securities or the receipt of the exercise price for the exercise
of the Warrants, will not be an “investment company” within the meaning of the
Investment Company Act of 1940, as amended.  The Company shall conduct
its business in a manner so that it will not become subject to the Investment
Company Act of 1940, as amended.

     

    2.23           Registration
Rights.   No Person has any right to cause the Company to
effect the registration under the Securities Act of any securities of the
Company that are senior to, or pari passu with, the rights of the Investors to
cause such registration.  The granting and performance of the
registration rights under the Transaction Documents will not violate or conflict
with, or result in a breach of any provision of, or constitute a default under,
any agreement, indenture or instrument to which the Company is a
party.

     

    2.24           Listing and Maintenance
Requirements.  The Company has not, in the twelve (12) months
preceding the date hereof, received notice from the OTC Bulletin Board 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 the OTC
Bulletin Board. The Company is, and has no reason to believe that it will not in
the foreseeable future continue to be, in compliance with all such listing and
maintenance requirements.

     

    2.25           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
Articles of Incorporation (or similar charter documents) or the laws of its
state of incorporation that is or could become applicable to any Investor as a
result of the Investors and the Company fulfilling their obligations or
exercising their rights under the Transaction Documents, including without
limitation as a result of the Company’s issuance of the Securities and any
Investor’s ownership of the Securities.

     

    2.26           Tax
Status.  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 owed thereunder, and the Company has no knowledge of a
tax deficiency or other tax liability which has been asserted or threatened
against the Company or any Subsidiary or upon any of their properties or
assets.  The Company and each Subsidiary has complied in all material
respects with all applicable legal requirements relating to the payment and
withholding of taxes and, within the time and in the manner prescribed by law,
has withheld from wages, fees and other payments and paid over to the proper
governmental or regulatory authorities all amounts required.


    
      
         


      

      
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    2.27           No General
Solicitation. Neither the Company or its Subsidiaries nor any person
acting on behalf of the Company or its Subsidiaries has offered or sold any of
the Securities by any form of general solicitation or general
advertising.

     

    2.28           Acknowledgment Regarding
Investor’s Purchase of Securities.  The Company acknowledges
that such Investor 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 such Investor is not
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 Investor or any of their respective
representatives or agents in connection with this Agreement and the transactions
contemplated hereby is merely incidental to such Investor’s purchase of the
Securities.  The Company further represents to such Investor 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.

     

    2.29           Contracts.

     

    (a)           All
agreements, contracts and binding commitments required to be filed by the
Company or its Subsidiaries under the Exchange Act or the Securities Act have
been filed in a timely manner with the Commission.

     

    (b)           Neither
the Company nor its Subsidiaries are restricted by agreement entered into by the
Company or its Subsidiaries from carrying on their business anywhere in the
world.

     

    2.30           Manipulation of
Price.  The Company has not, and to its knowledge no one acting on
its behalf has, taken, nor will take, directly or indirectly, any action
designed to cause or to result in the stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of any of the
Securities, (ii) sold, bid for, purchased, or, paid any compensation for
soliciting purchases of, any of the Securities (other than for the placement
agent’s placement of the Securities), or (iii) paid or agreed to pay to any
person any compensation for soliciting another to purchase any other securities
of the Company in connection with the sale of the Securities.

     

    2.31           Disclosure.  The
Company understands and confirms that the Investors will rely on the foregoing
representations and covenants in effecting transactions in securities of the
Company.  All disclosure provided to the Investors regarding the
Company, its business and the transactions contemplated hereby, including the
Disclosure Schedules to this Agreement, furnished by or on behalf of the Company
with respect to the representations and warranties made herein are true and
correct with respect to such representations and warranties 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.

     

    3.           Representations and
Warranties of the Investors.  Each Investor,
severally but not jointly, hereby represents and warrants to the Company
that:


    
      
         


      

      
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    3.1           Organization;
Authority.  Such Investor is an entity duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
organization with full right, corporate or partnership power and authority to
enter into and to consummate the transactions contemplated by the Transaction
Documents and otherwise to carry out its obligations hereunder and thereunder.
The execution and delivery of the Transaction Documents and performance by such
Investor of the transactions contemplated by the Transaction Documents have been
duly authorized by all necessary corporate or similar action on the part of such
Investor.  Each Transaction Document to which it is a party has been
duly executed by such Investor, and when delivered by such Investor in
accordance with the terms hereof, will constitute the valid and legally binding
obligation of such Investor, 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.

     

    3.2           Investor
Status.  At the time such Investor was offered the Securities,
it was, and as of the date hereof it is, and at the Closing and on each date on
which it exercises any Warrants or converts any Series A Preferred Stock, it
will be either: (i) an “accredited investor” as defined in Rule 501(a)(1),
(a)(2), (a)(3), (a)(7) or (a)(8) under the Securities Act or (ii) a “qualified
institutional buyer” as defined in Rule 144A(a) under the Securities
Act.  Such Investor is not required to be registered as a
broker-dealer under Section 15 of the Exchange Act.

     

    3.3           Non-U.S.
Investors.  If the Investor is not a United States person (as
defined by Section 7701(a)(30) of the Internal Revenue Code of 1986, as
amended), the Investor hereby represents that it has satisfied itself as to the
full observance of the laws of its jurisdiction in connection with any
invitation to subscribe for the Securities or any use of this Agreement,
including (i) the legal requirements within its jurisdiction for the
purchase of the Securities, (ii) any foreign exchange restrictions
applicable to such purchase, (iii) any governmental or other consents that
may need to be obtained, and (iv) the income tax and other tax
consequences, if any, that may be relevant to the purchase, holding, redemption,
sale, or transfer of the Securities.  The Investor’s subscription and
payment for and continued beneficial ownership of the Securities will not
violate any applicable securities or other laws of the Investor’s
jurisdiction.

     

    3.4           Experience of Such
Investor.  Such Investor, either alone or together with its
representatives, has such knowledge, sophistication and experience in business
and financial matters so as to be capable of evaluating the merits and risks of
the prospective investment in the Securities, and has so evaluated the merits
and risks of such investment.  Such Investor is able to bear the
economic risk of an investment in the Securities and, at the present time, is
able to afford a complete loss of such investment.


    
      
         


      

      
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    3.5           Short Sales and
Confidentiality Prior To The Date Hereof.  Other than
consummating the transactions contemplated hereunder, such Investor has not, nor
has any Person acting on behalf of or pursuant to any understanding with such
Investor, directly or indirectly executed any purchases or sales, including
“short sales” as defined in Rule 200 of Regulation SHO under the Exchange
Act, of the securities of the Company during the period commencing from the
time that such Investor first received a term sheet (written or oral) from the
Company or any other Person representing the Company setting forth the material
terms of the transactions contemplated hereunder until the date hereof (“Discussion
Time”).  Notwithstanding the foregoing, in the case of an
Investor that is a multi-managed investment vehicle whereby separate portfolio
managers manage separate portions of such Investor’s assets and the portfolio
managers have no direct knowledge of the investment decisions made by the
portfolio managers managing other portions of such Investor’s assets, the
representation set forth above shall only apply with respect to the portion of
assets managed by the portfolio manager that made the investment decision to
purchase the Securities covered by this Agreement.  Other than to
other Persons party to this Agreement or to an Investor’s managers, general
partner, management companies or employees or other service providers thereof
who are subject to customary confidentiality restrictions, such Investor has
maintained the confidentiality of all disclosures made to it in connection with
this transaction (including the existence and terms of this
transaction).

     

    3.6           Communication of the
Offer. The offer to sell the Securities was directly communicated to each
Investor by the Company or its representatives. Each Investor did not
independently contact the Company in connection with the Company’s offer to sell
the Securities. At no time was each Investor presented with or solicited by any
leaflet, newspaper or magazine article, radio or television advertisement, or
any registration statement or prospectus filed by the Company with the
Commission, or any other possible form of general advertising or solicited or
invited to attend a promotional meeting otherwise than in connection and
concurrently with such communicated offer.

     

    3.7           Disclosure of
Information.

     

    (a)           Such
Investor believes it has received all the information it considers necessary or
appropriate for deciding whether to purchase the Series A Preferred
Stock.  Such Investor further represents that it has had an
opportunity to ask questions and receive answers from the Company regarding the
terms and conditions of the offering of the Securities and the business,
properties, prospects and financial condition of the Company.  The
foregoing, however, does not limit or modify the representations and warranties
of the Company in Section 2 of this Agreement or the right of the Investors
to rely thereon.

     

    (b)           Each
Investor further acknowledges that, to the extent it has received information
relating to the Securities or the Company, such information has been prepared
solely by the Company and that Qatalyst Partners LP (“Qatalyst”), as
financial advisor to the Company, has not provided or verified any such
information and makes no recommendation, promise, representation or warranty as
to its accuracy or completeness.  Each Investor further acknowledges
that Qatalyst is acting merely as a financial advisor to the Company (and not as
an underwriter of the Securities) and that Qatalyst has not made to any of the
Investors, and the Investors have not relied upon, any representation, warranty
or condition (express or implied) by Qatalyst about, and Qatalyst shall have no
liability or responsibility to any of the Investors for, the effectiveness,
validity or enforceability of any agreement or other document entered into by or
provided to the Investors or the Company in connection with the transactions
contemplated hereby or any non-performance by any party to any of them, or the
financial condition of the Company, and Qatalyst shall owe no duty whatsoever to
any of the Investors in connection with the transactions contemplated
hereby.  Notwithstanding anything herein to the contrary, nothing in
Section 3.7(b) shall be deemed or construed as an obligation or agreement on
behalf of any Investor to indemnify or hold harmless Qatalyst from any claims or
actions asserted against Qatalyst.


    
      
         


      

      
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    3.8           Exculpation Among
Investors.  Each Investor acknowledges that it is not relying
upon any person, firm or corporation, other than the Company and its officers
and directors, in making its investment or decision to invest in the
Company.  Each Investor agrees that no Investor nor the respective
controlling persons, officers, directors, partners, agents, or employees of any
Investor shall be liable to any other Investor for any action heretofore or
hereafter taken or omitted to be taken by any of them in connection with the
purchase of the Securities.

     

    3.9           Restricted
Securities.  Such Investor understands that the Securities it
is purchasing are characterized as “restricted securities” under the federal
securities laws inasmuch as they are being acquired from the Company in a
transaction not involving a public offering and that under such laws and
applicable regulations such securities may be resold without registration under
the Act only in certain limited circumstances.  In this connection,
such Investor represents that it is familiar with SEC Rule 144, as presently in
effect, and understands the resale limitations imposed thereby and by the
Act.  SUCH INVESTOR UNDERSTANDS AND ACKNOWLEDGES HEREIN THAT AN
INVESTMENT IN THE COMPANY’S SECURITIES INVOLVES AN EXTREMELY HIGH DEGREE OF RISK
AND MAY RESULT IN A COMPLETE LOSS OF ITS INVESTMENT.

     

    4.           Conditions to Investors’
Obligations at the Closing.  The obligations of each Investor
under Section 1 of this Agreement with respect to the Closing are subject to the
fulfillment on or before the Closing of each of the following conditions, the
waiver of which shall not be effective against any Investor who does not consent
thereto:

     

    4.1           Representations and
Warranties.  The representations and warranties of the Company
contained in Section 2 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of the Closing.

     

    4.2           Performance.  The
Company shall have performed and complied with all agreements, obligations and
conditions contained in this Agreement that are required to be performed or
complied with by it on or before the Closing.

     

    4.3           Compliance
Certificate.  The President of the Company shall deliver to
each Investor at the Closing a certificate stating that the conditions specified
in Sections 4.1 and 4.2 have been fulfilled.

     

    4.4           Secretary’s
Certificate.  The Company shall deliver to each Investor a
certificate of the Secretary of the Company with respect to the Company’s
Articles of Incorporation, the Certificate of Designation, the Company’s Bylaws
and the resolutions of the Company’s Board of Directors relating to the
transactions contemplated hereby.

     

    4.5           Certificate of
Designation.  The Certificate of Designation shall have been
duly filed with and accepted for filing by the Secretary of State of the State
of Nevada.


    
      
         


      

      
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    4.6           Permits, Qualifications and
Consents.  All permits, authorizations, approvals, consents or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.

     

    4.7           Proceedings and
Documents.  All corporate and other proceedings in connection
with the transactions contemplated at the Closing hereby and all documents
incident thereto shall be reasonably satisfactory in form and substance to the
Investors participating in the Closing and their special counsel, and such
Investors and their special counsel shall have received all such counterpart
original and certified or other copies of such documents as they may reasonably
request.

     

    4.8           Opinions of Company
Counsel.  Each Investor in the Closing shall have received from
McDonald Carano Wilson LLP, Nevada counsel for the Company, an opinion, dated as
of the Closing, in substantially the form attached hereto as Exhibit D-1, and
from Morrison & Foerster LLP, counsel for the Company, an opinion, dated as
of the Closing, in substantially the form attached hereto as Exhibit D-2.

     

    4.9           Investors’ Rights
Agreement.  The Company and each Investor shall have entered
into the Investors’ Rights Agreement in the form attached hereto as Exhibit E (the
“Investors’ Rights
Agreement”).

     

    4.10           Board of
Directors.  The size of the Board of Directors shall be fixed
at eight (8) persons.  The directors of the Company at the Closing
shall be comprised of Matt Freeman, Michael Jung, Tabreez Verjee, Riaz Valani,
James Moloshok and John Durham.

     

    4.11           Existing Note
Holders.

     

    (a)           The
Company shall have entered into agreements, in forms reasonably acceptable to
Investors purchasing at least two-thirds of the shares of Series A Preferred
Stock being purchased hereunder, with the holders of the 6% senior convertible
notes due June 7, 2010 issued under the terms of that certain Purchase
Agreement, dated as of June 7, 2007, among the Company and such investors
identified on the signature pages thereto (the “Note Purchase
Agreement”), pursuant to which such notes shall be repurchased at a price
that in the aggregate shall be no greater than the aggregate remaining unpaid
face value of such notes, unless such condition is waived with respect to any
one or more notes by Investors purchasing at least two-thirds of the shares of
Series A Preferred Stock being purchased hereunder.

     

    (b)           The
Company shall have entered into agreements, in forms reasonably acceptable to
Investors purchasing at least two-thirds of the shares of Series A Preferred
Stock being purchased hereunder, with all of the investors party to the
Subscription Agreement dated April 18, 2008 and the Accession Agreement dated
June 30, 2008 (collectively, the “Subscription
Agreements”), pursuant to which the notes previously issued to such
investors under such Subscription Agreement shall be converted into Series A
Preferred Stock at the Closing.


    
      
         


      

      
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    (c)           The
Company shall have entered into agreements, in forms reasonably acceptable to
Investors purchasing at least two-thirds of the shares of Series A Preferred
Stock being purchased hereunder, with holders of at least 90% of the warrants
issued under the Note Purchase Agreement and the Subscription Agreements,
pursuant to which (i) such warrants shall be converted into shares of Common
Stock or repurchased by the Company at the Closing and (ii) the holders of such
warrants shall waive any anti-dilution adjustment to the exercise price of such
warrants that would otherwise occur as a result of the issuance of the
Securities or the issuance by the Company of the shares of Common Stock issuable
upon exercise of the Warrants or otherwise.

     

    4.12           Management
Options.

     

     (a)           The
Company shall have established a stock option pool for grants of options to
purchase Common Stock to employees of the Company equal to 25% of the total
number of issued and outstanding shares of Common Stock of the Company (assuming
the full conversion and exercise of all outstanding convertible and exercisable
securities of the Company at the Closing, including such options granted to
members of management), and the Company shall have granted the members of
management listed on Schedule 4.12 options
to purchase such number of shares of Common Stock from such pool as set forth on
Schedule
4.12.  The stock option agreements entered into with members of
management with respect to such stock options shall be in the form attached
hereto as Exhibit
F.

     

    (b)           The
Company shall have granted the members of management listed on Schedule 4.12 options
to purchase, in the aggregate, Common Stock equal to an additional 5% of the
total number of issued and outstanding shares of Common Stock of the Company
(assuming the full conversion and exercise of all outstanding convertible and
exercisable securities of the Company at the Closing, including such options
granted to members of management).  Such options shall vest only in
connection with certain events.  The stock option agreements entered
into with members of management with respect to such stock options shall be in
the form attached hereto as Exhibit
G.

     

    4.13           By-Laws
Amendment.   The Company shall have amended its Bylaws to
opt-out of the “Control Share Act” set forth in the Nevada General Corporation
Law.

     

    4.14           HSR
Filing.  To the extent applicable, any waiting periods (and any
extensions thereof) under the Hart-Scott-Rodino Antitrust Improvements Act of
1976 (the “HSR
Act”) shall have expired or otherwise been terminated.

     

    4.15           Board Approval. A
majority of the disinterested members of the Board of Directors shall have
approved the Transaction Documents and the transactions contemplated hereby and
thereby.

     

    4.16           Management Lock-Up
Letters.   The members of management listed on Schedule 4.16 shall
have entered into lock-up letter agreements in substantially the form attached
hereto as Exhibit
H, with respect to the securities of the Company owned by such members of
management.

     

    4.17           Consents;
Waivers.  The Company shall have obtained all consents and
waivers from its partners, customers, lenders, employees and stockholders
necessary to complete the transactions contemplated by the Transaction Documents
in the reasonable discretion of the Investors, including without limitation,
waivers of the acceleration of any rights or benefits relating to the treatment
of such transactions as a change in control of the Company.


    
      
         


      

      
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    4.18           Indemnification
Agreements.  The Company and each Preferred Director (as
defined in the Certificate of Designation) shall have entered into an
Indemnification Agreement in the form attached hereto as Exhibit
I.

     

    4.19           Management Rights
Letter.  The Company and each of the Investors that so request
shall each have entered into a Management Rights Letter in the form reasonably
acceptable to such Investor and the Company.

     

    5.           Conditions to the Company’s
Obligations at Closing .  The obligations of the Company to
each Investor with respect to the Closing at which such Investor purchases any
shares of Series A Preferred Stock hereunder are subject to the fulfillment on
or before the Closing of each of the following conditions by that
Investor:

     

    5.1           Representations and
Warranties.  The representations and warranties of the Investor
contained in Section 3 shall be true on and as of the Closing with the same
effect as though such representations and warranties had been made on and as of
the date of the Closing.

     

    5.2           Payment of Purchase
Price.  The Investor shall have delivered the purchase price
specified in Section 1.1 for the number of shares of Series A Preferred Stock
and the number of Warrants set forth opposite such Investor’s name on Schedule A
hereto.

     

    5.3           Permits, Qualifications and
Consents.  All permits, authorizations, approvals, consents or
permits, if any, of any governmental authority or regulatory body of the United
States or of any state that are required in connection with the lawful issuance
and sale of the Securities pursuant to this Agreement shall be duly obtained and
effective as of the Closing.

     

    5.4           HSR
Filing.  To the extent applicable, any waiting periods (and any
extensions thereof) under the HSR Act shall have expired or otherwise been
terminated.

     

    5.5           Board Approval. A
majority of the disinterested members of the Board of Directors of the Company
shall have approved the Transaction Documents and the transactions contemplated
hereby and thereby.

     

    6.           Conditions to Investors’
Obligations at any Subsequent Closing.  The obligations of each
Investor under Section 1 of this Agreement with respect to any Subsequent
Closing are subject to the fulfillment on or before such Subsequent Closing of
each of the following conditions to the extent applicable as set forth below,
the waiver of which shall not be effective against any Investor who does not
consent thereto:

     

    6.1           Opinions of Company
Counsel.  With respect to the Subsequent Closing at which
Panorama, L.P., Rembrandt Venture Partners Fund Two, L.P. (or its affiliates)
and Rustic Canyon Ventures III, L.P. have purchased from the Company the
aggregate amount of Securities set forth opposite their names on Schedule A-1 and
Schedule A-2
(including any amounts purchased at the Closing or any prior Subsequent Closing)
only (such date, the “Outside Funding
Date”), each Investor in such Subsequent Closing shall have received from
McDonald Carano Wilson LLP, Nevada counsel for the Company, an opinion, dated as
of such Subsequent Closing, in substantially the form attached hereto as Exhibit D-1, and
from Morrison & Foerster LLP, counsel for the Company, an opinion, dated as
of such Subsequent Closing, in substantially the form attached hereto as Exhibit D-2.


    
      
         


      

      
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    6.2           Requisite
Approval.  With respect to the first Subsequent Closing only,
the Company shall have obtained the Requisite Approval and at such Subsequent
Closing, the Company shall deliver to each Investor a certificate of the
Secretary of the Company with respect to the Company’s Amended Articles and the
resolutions of the Company’s Board of Directors and stockholders relating to the
approval and adoption of such Amended Articles.

     

    6.3           Amended
Articles.  With respect to the first Subsequent Closing only,
the Amended Articles shall have been duly filed with and accepted for filing by
the Secretary of State of the State of Nevada.

     

    6.4           Management Lockup
Agreements; Employment Agreements; Change of Control Waiver
Letters.  With respect to the Subsequent Closing that occurs on
the Outside Funding Date, the Company shall have entered into the Remaining
Management Lockup Agreements, the Remaining Employment Agreements and the
Remaining Change of Control Waiver Letters (as each such term is defined below)
on or before the date of such Subsequent Closing.

     

    6.5           Election of
Directors.  With respect to the Subsequent Closing that occurs
on the Outside Funding Date, the Board of Directors of the Company at such
Subsequent Closing shall be comprised of Matt Freeman, Michael Jung, Mark
Menell, Richard Ling, Tabreez Verjee, Riaz Valani, James Moloshok and John
Durham, and Mike Jung shall be a member of the Compensation Committee of the
Board of Directors.

     

    7.           Miscellaneous.

     

    7.1           Board of
Directors.  For the avoidance of doubt, after the Closing but
prior to the Outside Funding Date, the parties hereto agree that the Board of
Directors shall be comprised of Matt Freeman, Michael Jung, Tabreez Verjee, Riaz
Valani, James Moloshok and John Durham.

     

    7.2           Post-Closing
Covenants.

     

    (a)           The
Company shall use between $5,554,000 and $6,667,200 of the proceeds received
from the Investors upon the sale of the Securities to repurchase all of the
notes and warrants subject to the Call Option Agreements (the actual amount of
proceeds used is dependent upon the number of note holders that elect to roll
their investment into shares of Series A Preferred Stock).

     

    (b)           The
Company shall use its reasonable best efforts to enter into lock-up letter
agreements, in substantially the form attached hereto as Exhibit H, with the
members of management listed on Schedule 7.2(b) (the
“Remaining Management
Lock-Up Agreements”) on or prior to the Outside Funding
Date.


    
      
         


      

      
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    (c)           The
Company shall use its reasonable best efforts to enter into new employment
agreements, in substantially the forms provided to the Investors at the Closing,
with the members of management listed on Schedule 7.2(c) (the
“Remaining Employment
Agreements”) on or prior to the Outside Funding Date.

     

    (d)           The
Company shall use its reasonable best efforts to enter into change of control
waiver letters, in substantially the forms provided to the Investors at the
Closing, with the members of management listed on Schedule 7.2(d) (the
“Remaining Change of
Control Waiver Letters”) on or prior to the Outside Funding
Date.

     

    7.3           Survival of Representations,
Warranties and Covenants.

     

    (a)           The
warranties, representations and covenants of the Company and the Investors
contained in or made pursuant to this Agreement shall survive the execution and
delivery of this Agreement and the Closing and shall in no way be affected by
any investigation of the subject matter thereof made by or on behalf of the
Investors or the Company.

     

    (b)           In
addition to any other remedies that may be available to the Investors, if it is
subsequently determined by the parties hereto or by a court of law (pursuant to
a decision binding on the parties hereto in accordance with Section 7.5) after
the date hereof that the Company has breached the representations and warranties
made in Section 2.7 such that the number of outstanding shares of capital stock
and/or options, warrants or other rights (including, without limitation,
anti-dilution adjustments) to purchase or otherwise receive shares of capital
stock as of the Closing were greater than such numbers set forth in Section 2.7,
then the Company shall take such actions as may be necessary to make whole such
Investors for such breach, including without limitation by promptly authorizing
and issuing additional shares of capital stock of the Company to such Investors
without further consideration so that the Investors, individually and in the
aggregate, own at least the same percentage of the Company on a fully diluted
basis (assuming the full exercise, exchange and conversion of all exercisable,
exchangeable and convertible securities and including all shares of stock
reserved for future grant or issuance pursuant to any stock plans, agreements or
arrangements of the Company) as set forth on Schedule 2.7 of the Schedule of
Exceptions and with the same rights, preferences, privileges and benefits with
respect to such shares as contemplated by the Transaction
Documents.  In order to perform its obligations pursuant to this
Section 7.3 the Company will take such corporate action as may be necessary to
amend its Articles of Incorporation and/or other relevant agreements with the
Investors and shall use its reasonable best efforts to cause other stockholders
of the Company holding a requisite number of shares necessary to effect any such
amendments to vote in favor thereof and/or consent thereto.

     

    7.4           Successors and
Assigns.  Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties (including transferees of
any Securities).  Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.


    
      
         


      

      
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    7.5           Governing Law;
Venue.  This Agreement is to be construed in accordance with
and governed by the internal laws of the State of California without giving
effect to any choice of law rule that would cause the application of the laws of
any jurisdiction other than the internal laws of the State of California to the
rights and duties of the parties.  All disputes and controversies
arising out of or in connection with this Agreement shall be resolved
exclusively by the state or federal courts located in San Francisco County in
the State of California, and each party hereto agrees to submit to the
jurisdiction of said courts and agrees that venue shall lie exclusively with
such courts.

     

    7.6           Waiver of Right to Jury
Trial.  EACH OF INVESTORS AND THE COMPANY, TO THE FULLEST
EXTENT PERMITTED BY APPLICABLE LAW, HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY AS TO ANY ISSUE RELATING HERETO IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.

     

    7.7           Acknowledgment; Waiver of
Conflicts.  Each Investor acknowledges that: (a) it has read
this Agreement; (b) it has been represented in the preparation, negotiation and
execution of this Agreement by legal counsel of its own choice or has
voluntarily declined to seek such counsel; and (c) it understands the terms and
consequences of this Agreement and is fully aware of the legal and binding
effect of this Agreement.  Each Investor understands that the Company
has been represented in the preparation, negotiation and execution of this
Agreement by Morrison & Foerster LLP, counsel to the Company, and
that Morrison & Foerster LLP has not represented any
Investor or any stockholder, director or employee of the Company or any Investor
in the preparation, negotiation and execution of this Agreement.  Each
Investor acknowledges that Morrison & Foerster LLP has in the past represented
and is now or may in the future represent one or more Investors or their
affiliates in matters unrelated to the transactions contemplated by this
Agreement, including the representation of such Investors or their affiliates in
matters of a nature similar to those contemplated by this
Agreement.  The Company and each Investor hereby acknowledges that it
has had an opportunity to ask for and has obtained information relevant to such
representation, including disclosure of the reasonably foreseeable adverse
consequences of such representation, and hereby waives any conflict arising out
of such representation with respect to the matters contemplated by this
Agreement.

     

    7.8           Securities Law Disclosure;
Publicity.  The Company shall, as soon as practicable following
the date hereof, issue a press release reasonably acceptable to the Investors
describing the material terms of the transactions contemplated hereby, and file
a Current Report on Form 8-K, disclosing the material terms of the transactions
contemplated hereby, and including the Transaction Documents as exhibits
thereto, within the time period required by Commission
regulations.  The Company and each Investor shall consult with each
other in issuing any other press releases with respect to the transactions
contemplated hereby, and neither the Company nor any Investor shall issue any
such press release nor otherwise make any such public statement without the
prior consent of the Company (with respect to any press release of any Investor)
or without the prior consent of each Investor (with respect to any press release
of the Company), which consent shall not unreasonably be withheld or delayed,
except if such disclosure is required by law, in which case the disclosing party
shall promptly provide the other party with prior notice of such public
statement or communication.  Notwithstanding the foregoing, the
Company shall not publicly disclose the name of any Investor or any of its
affiliates except (i) with the prior written consent of such Investor, (ii) as
may be required by law (in which case the Company shall provide such Investor
with prior notice of such disclosure to the extent reasonably practicable), or
(iii) as may be required to register the Securities for resale with the
Commission or to list the Securities with any Trading Market.  Each
party hereto shall be responsible for any disclosure or other action by such
party’s employees or agents that would constitute a breach of this Section 7.8
to the same extent as if such disclosure or other action had been undertaken by
such party itself.    This Section 7.8 shall supersede and
replace any confidentiality and similar obligations that may exist between the
Company and any Investor.


    
      
         


      

      
        21

        
          

        

      

      
         


      

    

     

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

     

    7.10           Titles and
Subtitles.  The titles and subtitles used in this Agreement are
used for convenience only and are not to be considered in construing or
interpreting this Agreement.

     

    7.11           Notices.  Except
as may be otherwise provided herein, all notices, requests, waivers and other
communications made pursuant to this Agreement shall be in writing and shall be
conclusively deemed to have been duly given (a) when hand delivered to the
other party; (b) three business days after deposit in the U.S. mail with
registered mail receipt requested postage prepaid and addressed to the other
party at the address set forth below; or (c) the next business day after
deposit with a national overnight delivery service, postage prepaid, addressed
to the parties as set forth below with next business day delivery guaranteed,
provided that the sending party receives a confirmation of delivery from the
delivery service provider.  A party may change or supplement the
addresses given above, or designate additional addresses, for purposes of this
Section 7.11 by giving the other party written notice of the new address in
the manner set forth above.

     

    7.12           Finder’s
Fee.  Each party represents that it neither is nor will be
obligated for any finders’ fee or commission in connection with this
transaction.  Each Investor agrees to indemnify and to hold harmless
the Company from any liability for any commission or compensation in the nature
of a finders’ fee (and the costs and expenses of defending against such
liability or asserted liability) for which such Investor or any of its officers,
partners, employees or representatives is responsible.  The Company
agrees to indemnify and hold harmless each Investor from any liability for any
commission or compensation in the nature of a finders’ fee (and the costs and
expenses of defending against such liability or asserted liability) for which
the Company or any of its officers, partners, employees or representatives is
responsible.

     

    7.13           Expenses.  Irrespective
of whether the Closing is effected, the Company shall pay all costs and expenses
that it incurs with respect to the negotiation, execution, delivery and
performance of this Agreement.  If the Closing is effected, the
Company shall, at the Closing and each Subsequent Closing, reimburse the
reasonable fees and out-of-pocket expenses of Gunderson Dettmer Stough
Villeneuve Franklin & Hachigian, LLP, special counsel to certain of the
Investors, not to exceed $100,000 in the aggregate.  If any action at
law or in equity is necessary to enforce or interpret the terms of the
Transaction Documents or the Certificate of Designation, the prevailing party
shall be entitled to reasonable attorney’s fees, costs and necessary
disbursements in addition to any other relief to which such party may be
entitled.  The Company shall pay all transfer agent fees, stamp taxes
and other taxes and duties levied in connection with the delivery of any
Securities to the Investors.


    
      
         


      

      
        22

        
          

        

      

      
         


      

    

     

    7.14           Amendments and
Waivers.  Subject to the provisions of Section 4, any term of
this Agreement may be amended and the observance of any term of this Agreement
may be waived (either generally or in a particular instance and either
retroactively or prospectively), only with the written consent of the Company
and the Investors purchasing at least two-thirds of the Securities purchased
hereunder.  Any amendment or waiver effected in accordance with this
paragraph shall be binding upon each holder of any securities purchased under
this Agreement at the time outstanding (including securities into which such
securities are convertible), each future holder of all such securities, and the
Company.

     

    7.15           Indemnification of
Investors.  Subject to the provisions of this Section 7.14, the
Company will indemnify and hold each Investor and its directors, officers,
stockholders, members, partners, employees, affiliates and agents (and any other
Persons with a functionally equivalent role of a Person holding such titles
notwithstanding a lack of such title or any other title), each Person who
controls such Investor (within the meaning of Section 15 of the Securities Act
and Section 20 of the Exchange Act), and the directors, officers, agents,
members, partners, employees, affiliates and agents (and any other Persons with
a functionally equivalent role of a Person holding such titles notwithstanding a
lack of such title or any other title) of 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 that any such Investor Party may suffer or incur as a
result of or relating to (a) any breach of any of the representations,
warranties, covenants or agreements made by the Company in this Agreement or in
the other Transaction Documents or (b) any action instituted against an Investor
Party, by any third party with respect to any of the transactions contemplated
by the Transaction Documents (unless such action is based upon a breach of such
Investor’s representations, warranties or covenants under the Transaction
Documents or any agreements or understandings such Investor may have with any
such stockholder or any violations by such Investor of state or federal
securities laws or any conduct by such Investor which constitutes fraud, or
willful misconduct).  If any action shall be brought against any
Investor Party in respect of which indemnity is being sought pursuant to this
Agreement, upon its knowledge thereof such Investor Party shall promptly notify
the Company in writing; provided, however, that any failure of such Investor
Party to so notify the Company shall not alter or relieve the Company of its
obligations to indemnify the Investor Parties, except and to the extent that
such delay or failure has materially prejudiced the Company, and the Company
shall have the right to assume the defense thereof with counsel of its own
choosing.  Any Investor 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 Investor Party
except to the extent that (i) the employment thereof has been specifically
authorized by the Company in writing, (ii) the Company has failed after a
reasonable period of time to assume such defense and to employ counsel or (iii)
in such action there is, in the reasonable opinion of such separate counsel, a
material conflict on any material issue between the position of the Company and
the position of such Investor Party.  The Company will not be liable
to any Investor Party under this Agreement (i) for any settlement by a Investor
Party effected without the Company’s prior written consent, which shall not be
unreasonably withheld or delayed; or (ii) to the extent, but only to the extent
that a loss, claim, damage or liability is attributable to any Investor Party’s
breach of any of the representations, warranties, covenants or agreements made
by the Investors in this Agreement or in the other Transaction
Documents.


    
      
         


      

      
        23

        
          

        

      

      
         


      

    

     

    7.16           Operation of
Business.  During the period from the date of this Agreement
until the Subsequent Closing Deadline, except as contemplated by this Agreement
and the Warrants, the Company shall carry on its business in the ordinary course
in substantially the same manner as heretofore conducted and, to the extent
consistent with such business, use its reasonable best efforts consistent with
past practice and policies to preserve intact its present business
organizations, keep available the services of its present officers, consultants
and employees and preserve its relationships with customers, suppliers and
others having business dealings with it.

     

    7.17           Specific
Performance.  The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or were not
performed in accordance with its specific terms or were otherwise
breached.  Each party hereby agrees that, in the event of any breach
or threatened breach by any party hereto of any covenant or obligation contained
in this Agreement, the Investors shall be entitled (in addition to any other
remedy that may be available to them, including monetary damages) to seek and
obtain (a) a decree or order of specific performance to enforce the observance
and performance of such covenant or obligation and (b) an injunction restraining
such breach or threatened breach.  The rights and remedies of the
Investors under this Agreement are not exclusive of or limited by any other
rights or remedies which it may have, whether at law, in equity, by contract or
otherwise, all of which shall be cumulative (and not
alternative).  Without limiting the generality of the foregoing, the
rights and remedies of the Investors under this Agreement, and the obligations
and liabilities of Stockholder under this Agreement, are in addition to their
respective rights, remedies, obligations and liabilities under common law
requirements and under all applicable statutes, rules and
regulations.

     

    7.18           Severability.  If
one or more provisions of this Agreement are held to be unenforceable under
applicable law 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; provided, however,
until such time as the parties can so agree, such provision shall be excluded
from this Agreement and the balance of the Agreement shall be interpreted as if
such provision were so excluded and shall be enforceable in accordance with its
terms.

     

    7.19           Aggregation of
Stock.  All Securities held or acquired by entities advised by
the same investment adviser and affiliated entities or persons shall be
aggregated together for the purpose of determining the availability of any
rights under this Agreement.

     

    7.20           Further
Assurances.  Each Investor and the Company shall from time to
time and at all times hereafter make, do, execute, or cause or procure to be
made, done and executed such further acts, deeds, conveyances, consents and
assurances without further consideration, which may reasonably be required to
effect the transactions contemplated by this Agreement.


    
      
         


      

      
        24

        
          

        

      

      
         


      

    

     

    7.21           Successors and
Assigns.  Except as otherwise provided herein, the terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and assigns of the parties (including transferees of
any Securities).  Nothing in this Agreement, express or implied, is
intended to confer upon any party other than the parties hereto or their
respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.

     

    7.22           Entire
Agreement.  This Agreement and the documents referred to herein
constitute the entire agreement among the parties with respect to the subject
matter hereof and no party shall be liable or bound to any other party in any
manner by any warranties, representations or covenants except as specifically
set forth herein or therein.

     

    *    *    *


    
      
         


      

      
        25

        
          

        

      

      
         


      

    


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

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      COMPANY:

                                    
	 
      
	
                                      GOFISH
      CORPORATION

                                    
	 
      	 
      
	
                                      By:

                                    	
                                      /s/
      Tabreez Verjee

                                    
	 
      	 
      
	
                                      Name:

                                    	
                                      Tabreez
      Verjee

                                    
	 
      	 
      
	
                                      Title:

                                    	
                                      President

                                    
	 
      	 
      
	
                                      Address:

                                    	
                                      GoFish
      Corporation

                                    
	 
      	
                                      706
      Mission Street, 10th Floor

                                    
	 
      	
                                      San
      Francisco, CA 94103

                                    
	 
      	 
      
	
                                      Facsimile:

                                    	
                                      415-978-3020

                                    


                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
         


      

      
        
        

        
          

        

      

      
         


      

    

    


    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  
                                    
                                      
                                        
                                          
                                            
                                              	
                                                      INVESTOR:

                                                    
	 	 
	
                                                      REMBRANDT
      VENTURE PARTNERS
      FUND TWO, L.P.

                                                    
	 
      	 
      
	
                                                      By:

                                                    	
                                                      /s/
      Richard Ling

                                                    
	 
      	 
      
	
                                                      Name:

                                                    	
                                                      Richard
      Ling

                                                    
	 
      	 
      
	
                                                      Title:

                                                    	
                                                      Managing
      Member of Rembrandt Venture

                                                    
	 
      	
                                                      Partners
      Fund Two, LLC, its General Partner

                                                    
	 
      	 
      
	
                                                      Address:

                                                    	
                                                      2200
      Sand Hill Road, Suite 160

                                                    
	 
      	
                                                      Menlo
      Park, CA 94025

                                                    
	 
      	   
      
	
                                                      Facsimile:

                                                    	
                                                      650-326-3780

                                                    


                                            

                                          

                                        

                                      

                                    

                                  

                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                          REMBRANDT
      VENTURE PARTNERS FUND TWO-A, L.P.

                                        
	 
      	 
      
	
                                          By:

                                        	
                                          /s/
      Richard Ling

                                        
	 
      	 
      
	
                                          Name:

                                        	
                                          Richard
      Ling

                                        
	 
      	 
      
	
                                          Title:

                                        	
                                          Managing
      Member of Rembrandt Venture

                                        
	 
      	
                                          Partners
      Fund Two, LLC, its General Partner

                                        
	 
      	 
      
	
                                          Address:

                                        	
                                          2200
      Sand Hill Road, Suite 160

                                        
	 
      	
                                          Menlo
      Park, CA 94025

                                        
	 
      	   
      
	
                                          Facsimile:

                                        	
                                          650-326-3780

                                        


                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              
                                
                                  	
                                          INVESTOR:

                                        
	 
      
	
                                          PANORAMA
      CAPITAL, L.P.

                                        
	 
      
	
                                          BY: PANORAMA
      CAPITAL MANAGEMENT, L.L.C., ITS GENERAL PARTNER

                                        
	 
      	 
      
	
                                          By:

                                        	
                                          /s/
      Audrey Vallen

                                        
	 
      	 
      
	
                                          Name:

                                        	
                                          Audrey
      Vallen

                                        
	 
      	 
      
	
                                          Title:

                                        	
                                          CFO

                                        
	 
      	 
      
	
                                          Address:

                                        	
                                          2440
      Sand Hill Road, #302

                                        
	 
      	
                                          Menlo
      Park, CA 94025

                                        
	 
      	    
      
	
                                          Facsimile:

                                        	
                                          650-234-1437

                                        


                                

                              

                            

                          

                        

                      

                    

                  

                

              

            

          

        

      

    

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    
      
        
          
            
              
                
                  
                    
                      
                        
                          
                            
                              	
                                      INVESTOR:

                                    
	 
      
	
                                      RUSTIC
      CANYON VENTURES III, L.P.

                                    
	 
      
	
                                      BY:
      RUSTIC CANYON PARTNERS, LLC, ITS GENERAL PARTNER

                                    
	 
      	 
      
	
                                      By:

                                    	
                                      /s/
      Mark Menell

                                    
	 
      	 
      
	
                                      Name:

                                    	
                                      Mark
      Menell

                                    
	 
      	 
      
	
                                      Title:

                                    	
                                      Member

                                    
	 
      	 
      
	
                                      Address:

                                    	
                                      203
      Redwood Shores Parkway

                                    
	 
      	
                                      Suite
      450

                                    
	 
      	
                                      Redwood
      Shores, CA 94065

                                    
	
                                      Facsimile:

                                    	
                                      650-649-2321