exv10w1






Exhibit 10.1




SECURITIES PURCHASE AGREEMENT




     This Securities Purchase Agreement (this “Agreement”) is dated as of September 20, 2010 by and
among Anthera Pharmaceuticals, Inc., a Delaware corporation (the “Company”), and each purchaser
identified on the signature pages hereto (each, including its successors and assigns, a “Purchaser”
and collectively, the “Purchasers”).



RECITALS



          A. The Company and each Purchaser is executing and delivering this Agreement in reliance upon
the exemption from securities registration afforded by Section 4(2) of the Securities Act of 1933,
as amended (the “Securities Act”), and Rule 506 of Regulation D (“Regulation D”) as promulgated by
the United States Securities and Exchange Commission (the “Commission”) under the Securities Act.




          B. Each Purchaser, severally and not jointly, wishes to purchase, and the Company wishes to
sell, upon the terms and conditions stated in this Agreement, (i) that aggregate number of shares
of common stock, par value $0.001 per share (the “Common Stock”), of the Company, set forth below
such Purchaser’s name on the signature page of this Agreement (which aggregate amount for all
Purchasers together shall be 10,500,000 shares of Common Stock and shall be collectively referred
to herein as the “Shares”) and (ii) warrants, in substantially the form attached hereto as
Exhibit A (the “Warrants”), to acquire up to that number of additional shares of Common
Stock equal to forty percent (40%) of the number of Shares purchased by such Purchaser (rounded up
to the nearest whole share) (the shares of Common Stock issuable upon exercise of or otherwise
pursuant to the Warrants collectively are referred to herein as the “Warrant Shares”).




          C. The Shares, the Warrants and the Warrant Shares collectively are referred to herein as the
“Securities”.




          D. The Company has engaged Piper Jaffray & Co. as its sole lead placement agent and Wedbush
PacGrow Life Sciences as co-agent (together, the “Placement Agent”) for the offering of the Shares
and Warrants on a “best efforts” basis.




          E. Contemporaneously with the execution and delivery of this Agreement, the parties hereto are
executing and delivering a Registration Rights Agreement, substantially in the form attached hereto
as Exhibit B (the “Registration Rights Agreement”), pursuant to which, among other things,
the Company will agree to provide certain registration rights with respect to the Shares and the
Warrant Shares under the Securities Act and the rules and regulations promulgated thereunder and
applicable state securities laws.




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



ARTICLE I.

DEFINITIONS



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



          “Acquiring Person” has the meaning set forth in Section 4.6.




 









 








          “Action” means any action, suit, inquiry, notice of violation, proceeding (including any
partial proceeding such as a deposition) or investigation pending or, to the Company’s Knowledge,
threatened against the Company, any Subsidiary or any of their respective properties or any
officer, director or employee of the Company or any Subsidiary acting in his or her capacity as an
officer, director or employee before or by any federal, state, county, local or foreign court,
arbitrator, governmental or administrative agency, regulatory authority, stock market, stock
exchange or trading facility.




          “Affiliate” means, with respect to any Person, any other Person that, directly or indirectly
through one or more intermediaries, Controls, is controlled by or is under common control with such
Person, as such terms are used in and construed under Rule 405 under the Securities Act. With
respect to a Purchaser, any investment fund or managed account that is managed on a discretionary
basis by the same investment manager as such Purchaser will be deemed to be an Affiliate of such
Purchaser.




          “Agreement” has the meaning set forth in the Preamble.




          “Approved Stock Plan” has the meaning set forth in Section 4.15(f).




          “Available Undersubscription Amount” has the meaning set forth in Section 4.15(b).




          “Basic Amount” has the meaning set forth in Section 4.15(a).




          “Board of Directors” means the board of directors of the Company.




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




          “Buy-In” has the meaning set forth in Section 4.1(f).




          “Buy-In Price” has the meaning set forth in Section 4.1(f).




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




          “Closing Bid Price” means, for any security as of any date, (a) the last reported closing bid
price per share for such security on the Principal Trading Market, as reported by Bloomberg
Financial Markets, or, (b) if the Principal Trading Market begins to operate on an extended hours
basis and does not designate the closing bid price then the last bid price of such security prior
to 4:00 P.M., New York City time, as reported by Bloomberg Financial Markets, or (c) if the
foregoing do not apply, the last closing price of such security in the over-the-counter market on
the electronic bulletin board for such security as reported by Bloomberg Financial Markets, or (d)
if no closing bid price is reported for such security by Bloomberg Financial Markets, the average
of the bid prices of any market makers for such security as reported in the “pink sheets” by Pink
Sheets LLC. If the Closing Bid Price cannot be calculated for a security on a particular date on
any of the foregoing bases, the Closing Bid Price of such security on such date shall be the fair
market value as mutually determined by the Company and the holder of such security. If the Company
and such holder are unable to agree upon the fair market value of such security, then such dispute
shall be resolved pursuant to Section 10 of the Warrants. All such determinations shall be
appropriately adjusted for any stock dividend, stock split, stock combination or other similar
transaction during the applicable calculation period.




          “Closing Date” means the Trading Day when all of the Transaction Documents have been executed
and delivered by the applicable parties thereto, and all of the conditions set forth in
Sections 2.1,





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2.2, 5.1 and 5.2 hereof are satisfied or waived, as
the case may be, or such other date as the parties may agree.




          “Commission” has the meaning set forth in the Recitals.




          “Common Stock” has the meaning set forth in the Recitals, and also includes any other class of
securities into which the Common Stock may hereafter be reclassified or changed into.




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




          “Company” has the meaning set forth in the Preamble.




          “Company Counsel” means Goodwin Procter LLP, with offices located at Three Embarcadero Center,
24th Floor, San Francisco, California 94111.




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




          “Company’s Knowledge” means with respect to any statement made to the Company’s Knowledge,
that the statement is based upon the actual knowledge of the executive officers of the Company
having responsibility for the matter or matters that are the subject of the statement.




          “Control” (including the terms “controlling”, “controlled by” or “under common control with”)
means the possession, direct or indirect, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership of voting securities, by
contract or otherwise.




          “Deadline Date” has the meaning set forth in Section 4.1(f).




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




          “Disclosure Schedules” has the meaning set forth in Section 3.1.




          “DTC” has the meaning set forth in Section 4.1(c).




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




          “Effectiveness Deadline” means the date on which the initial Registration Statement is
required to be declared effective by the Commission under the terms of the Registration Rights
Agreement.




          “Environmental Laws” has the meaning set forth in Section 3.1(dd).




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




          “Exchange Act” means the Securities Exchange Act of 1934, as amended, or any successor
statute, and the rules and regulations promulgated thereunder.




          “GAAP” means U.S. generally accepted accounting principles, as applied by the Company.





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




          “Intellectual Property Rights” has the meaning set forth in Section 3.1(p).




          “IRA” means that certain Second Amended and Restated Investor Rights Agreement by and among
the Company and the other persons and entities party thereto, dated as of July 17, 2009.




          “Irrevocable Transfer Agent Instructions” means, with respect to the Company, the Irrevocable
Transfer Agent Instructions, in substantially the form of Exhibit E, executed by the
Company and delivered to and acknowledged in writing by the Transfer Agent.




          “Legend Removal Date” has the meaning set forth in Section 4.1(c).




          “Lien” means any lien, charge, claim, encumbrance, security interest, right of first refusal,
preemptive right or other restrictions of any kind.




          “Material Adverse Effect” means a material adverse effect on the results of operations,
assets, prospects, business or financial condition of the Company and the Subsidiaries, taken as a
whole, except that any of the following, either alone or in combination, shall not be deemed a
Material Adverse Effect: (i) effects caused by changes or circumstances affecting general market
conditions in the U.S. economy or which are generally applicable to the industry in which the
Company operates, provided that such effects are not borne disproportionately by the Company, (ii)
effects resulting from or relating to the announcement or disclosure of the sale of the Securities
or other transactions contemplated by this Agreement, or (iii) effects caused by any event,
occurrence or condition resulting from or relating to the taking of any action by the Company as
required in accordance with this Agreement.




          “Material Contract” means any contract of the Company that has been filed or was required to
have been filed as an exhibit to the SEC Reports pursuant to Item 601(b)(4) or Item 601(b)(10) of
Regulation S-K.




          “Material Permits” has the meaning set forth in Section 3.1(n).




          “New York Courts” means the state and federal courts sitting in the City of New York, Borough
of Manhattan.




          “Notice of Acceptance” has the meaning set forth in Section 4.15(b).




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




          “Offer” has the meaning set forth in Section 4.15(a).




          “Offer Notice” has the meaning set forth in Section 4.15(a).




          “Offer Period” has the meaning set forth in Section 4.15(b).




          “Offered Securities” has the meaning set forth in Section 4.15(a).




          “Outside Date” means the tenth day following the date of this Agreement.




          “Person” means an individual, corporation, partnership, limited liability company, trust,
business trust, association, joint stock company, joint venture, sole proprietorship,
unincorporated organization, governmental authority or any other form of entity not specifically
listed herein.




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          “Placement Agent” has the meaning set forth in the Recitals.




          “Press Release” has the meaning set forth in Section 4.5.




          “Principal Trading Market” means the Trading Market on which the Common Stock is primarily
listed on and quoted for trading, which, as of the date of this Agreement and the Closing Date,
shall be the Nasdaq Global Market.




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




          “Purchase Price” means $3.00 per unit, with $2.95 attributable to the Share included therein
and $0.05 (calculated by taking $0.125 x 0.4) attributable to the Warrant included therein to
purchase 0.4 Warrant Shares.




          “Purchaser” or “Purchasers” has the meaning set forth in the Recitals.




          “Purchaser Deliverables” has the meaning set forth in Section 2.2(b).




          “Purchaser Party” has the meaning set forth in Section 4.9.




          “Refused Securities” has the meaning set forth in Section 4.15(c).




          “Registration Rights Agreement” has the meaning set forth in the Recitals.




          “Registration Statement” means a registration statement meeting the requirements set forth in
the Registration Rights Agreement and covering the resale by the Purchasers of the Registrable
Securities (as defined in the Registration Rights Agreement).




          “Regulation D” has the meaning set forth in the Recitals.




          “Required Approvals” has the meaning set forth in Section 3.1(e).




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




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




          “Secretary’s Certificate” has the meaning set forth in Section 2.2(a)(vii).




          “Securities” has the meaning set forth in the Recitals.




          “Securities Act” has the meaning set forth in the Recitals.




          “Shares” has the meaning set forth in the Recitals.




          “Short Sales” include, without limitation, (i) all “short sales” as defined in Rule 200
promulgated under Regulation SHO under the Exchange Act, whether or not against the box, and all
types of direct and indirect stock pledges, forward sale contracts, options, puts, calls, short
sales, swaps, “put equivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
similar arrangements (including on a total return basis), and (ii) sales and other transactions
through non-U.S. broker dealers or




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foreign regulated brokers (but shall not be deemed to include
the location and/or reservation of borrowable shares of Common Stock).




          “Stock Certificates” has the meaning set forth in Section 2.2(a)(ii).




          “Subscription Amount” means, with respect to each Purchaser, the aggregate amount to be paid
for the Shares and the related Warrants purchased hereunder as indicated on such Purchaser’s
signature page to this Agreement next to the heading “Aggregate Purchase Price (Subscription
Amount)” in United States dollars and in immediately available funds.




          “Subsequent Placement” has the meaning set forth in Section 4.15.




          “Subsidiary” means any subsidiary of the Company as set forth on Schedule 3.1(a), and
shall, where applicable, include any subsidiary of the Company formed or acquired after the date
hereof.




          “Trading Affiliate” has the meaning set forth in Section 3.2(h).




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




          “Trading Market” means whichever of the New York Stock Exchange, the NYSE Alternext (formerly
the American Stock Exchange), the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ
Capital Market or the OTC Bulletin Board on which the Common Stock is listed or quoted for trading
on the date in question.




          “Transaction Documents” means this Agreement, the schedules and exhibits attached hereto, the
Warrants, the Registration Rights Agreement, the Irrevocable Transfer Agent Instructions and any
other documents or agreements explicitly contemplated hereunder.




          “Transfer Agent” means American Stock Transfer & Trust Company, LLC, the current transfer
agent of the Company, with a mailing address of 6201 15th Avenue, Brooklyn, NY 11219, and a
facsimile number of (718) 236-4588, or any successor transfer agent for the Company.




          “Undersubscription Amount” has the meaning set forth in Section 4.15(b).




          “Warrants” has the meaning set forth in the Recitals to this Agreement.




          “Warrant Shares” has the meaning set forth in the Recitals.




ARTICLE II.

PURCHASE AND SALE



     2.1 Closing.



          (a) Amount. Subject to the terms and conditions set forth in this
Agreement, at the Closing, the Company shall issue and sell to each Purchaser, and each Purchaser
shall, severally and not jointly,





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purchase from the Company, such number of units equal to the
quotient resulting from dividing (i) the Subscription Amount for such Purchaser as indicated below
such Purchaser’s name on its signature page to this Agreement by (ii) the Purchase Price, rounded
down to the nearest whole Share. Each such unit shall be comprised of one (1) share of Common
Stock and a Warrant to purchase 0.4 Warrant Shares. Warrants shall have an exercise price equal to
$3.30 per Warrant Share, subject to adjustment as provided in such Warrants.




          (b) Closing. The Closing of the purchase and sale of the Shares and
Warrants shall take place at the offices of Goodwin Procter LLP, Three Embarcadero Center,
24th Floor, San Francisco, California on the Closing Date or at such other locations or
remotely by facsimile transmission or other electronic means as the parties may mutually agree.




          (c) Form of Payment. Except as may otherwise be agreed to among the Company
and one or more of the Purchasers, on or prior to the Business Day immediately prior to the Closing
Date, each Purchaser shall wire its Subscription Amount, in United States dollars and in
immediately available funds, to a non-interest bearing escrow account established by the Company
and the Placement Agent with JPMorgan Chase Bank, N.A. (the “Escrow Agent”) as set forth on
Exhibit H hereto (the aggregate amounts received being held in escrow by the Escrow Agent
are referred to herein as the “Escrow Amount”). On the Closing Date, (a) the Company and the
Placement Agent shall instruct the Escrow Agent to deliver, in immediately available funds, the
Escrow Amount constituting the aggregate Purchase Price as follows: (1) to the Placement Agent, the
fees and reimbursable expenses payable to the Placement Agent (which fees and expenses shall be set
forth in such instructions), and (2) the balance of the aggregate Purchase Price to the Company,
(b) the Company shall irrevocably instruct the Transfer Agent to deliver to each Purchaser one or
more stock certificates, free and clear of all restrictive and other legends (except as expressly
provided in Section 4.1(b) hereof), evidencing the number of Shares such Purchaser is
purchasing as is set forth on such Purchaser’s signature page to this Agreement next to the heading
“Number of Shares to be Acquired”, within three (3) Trading Days after the Closing and (c) the
Company shall deliver to each Purchaser one or more Warrants, free and clear of all restrictive and
other legends (except as expressly provided in Section 4.1(b) hereof), evidencing the
number of Warrant Shares such Purchaser is entitled to purchase as is set forth on such Purchaser’s
signature page to this Agreement next to the heading “Underlying Shares Subject to Warrant,” within
three (3) Trading Days after the Closing.




     2.2 Closing Deliveries.



          (a) On or prior to the Closing, the Company shall issue, deliver or cause to be delivered to
each Purchaser the following (the “Company Deliverables”):




               (i) this Agreement, duly executed by the Company;



               (ii) facsimile copies of one or more stock certificates, free and clear of all
restrictive and other legends (except as provided in Section 4.1(b) hereof), evidencing the
Shares subscribed for by such Purchaser hereunder, registered in the name of such Purchaser as set
forth on the Stock Certificate Questionnaire included as Exhibit C-2 hereto (the “Stock
Certificate”), with the original Stock Certificates delivered within three (3) Trading Days of
Closing;



               (iii) facsimile copies of one or more Warrants, executed by the Company and
registered in the name of such Purchaser as set forth on the Stock Certificate Questionnaire
included as Exhibit C-2 hereto, pursuant to which such Purchaser shall have the right to
acquire such number of Warrant Shares equal to forty percent (40%) of the number of Shares issuable
to such Purchaser pursuant to Section 2.2(a)(ii), rounded up to the nearest whole share, on
the terms set forth therein, with the original Warrants delivered within three (3) Trading Days of
Closing;



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               (iv) a legal opinion of Company Counsel, dated as of the Closing Date and in
substantially the form attached hereto as Exhibit D, executed by such counsel and addressed
to the Purchasers and the Placement Agent;



               (v) the Registration Rights Agreement, duly executed by the Company;



               (vi) duly executed Irrevocable Transfer Agent Instructions acknowledged in writing
by the Transfer Agent instructing the Transfer Agent to deliver, on an expedited basis, a
certificate evidencing a number of Shares equal to such Purchaser’s Subscription Amount divided by
the Purchase Price, registered in the name of such Purchaser;



               (vii) a certificate of the Secretary of the Company (the “Secretary’s Certificate”),
dated as of the Closing Date, (a) certifying the resolutions adopted by the Board of Directors of
the Company or a duly authorized committee thereof approving the transactions contemplated by this
Agreement and the other Transaction Documents and the issuance of the Securities, (b) certifying
the current versions of the certificate of incorporation, as amended, and by-laws of the Company
and (c) certifying as to the signatures and authority of persons signing the Transaction Documents
and related documents on behalf of the Company, in the form attached hereto as Exhibit F;



               (viii) the Compliance Certificate referred to in Section 5.1(i);



               (ix) a Lock-Up Agreement, substantially in the form of Exhibit I hereto (the
“Lock-Up Agreement”) executed by each person listed on Exhibit J hereto, and each such
Lock-Up Agreement shall be in full force and effect on the Closing Date;



               (x) a certificate evidencing the formation and good standing of the Company issued
by the Secretary of State of Delaware, as of a date within three (3) Business Days of the Closing
Date;



               (xi) a certificate evidencing the Company’s qualification as a foreign corporation
and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in
which the Company is qualified to do business as a foreign corporation, as of a date within three
(3) Business Days of the Closing Date; and



               (xii) a certified copy of the certificate of incorporation, as certified by the
Secretary of State of Delaware, as of a date within three (3) Business Days of the Closing Date.



          (b) On or prior to the Closing, each Purchaser shall deliver or cause to be
delivered to the Company the following, with respect to such Purchaser (the “Purchaser
Deliverables”):




               (i) this Agreement, duly executed by such Purchaser;



               (ii) its Subscription Amount, in United States dollars and in immediately available
funds, in the amount set forth as the “Purchase Price” indicated below such Purchaser’s name on
the applicable signature page hereto under the heading “Aggregate Purchase Price (Subscription
Amount)” by wire transfer to the Escrow Account, as set forth on Exhibit H attached hereto;



               (iii) the Registration Rights Agreement, duly executed by such Purchaser;



               (iv) a fully completed and duly executed Selling Stockholder Questionnaire in the
form attached as Annex B to the Registration Rights Agreement; and



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               (v) a fully completed and duly executed Accredited Investor Questionnaire,
satisfactory to the Company, and Stock Certificate Questionnaire in the forms attached hereto as
Exhibits C-1 and C-2, respectively.



ARTICLE III.

REPRESENTATIONS AND WARRANTIES



     3.1 Representations and Warranties of the Company. Except as set forth in the
schedules delivered herewith (the “Disclosure Schedules”), which Disclosure Schedules shall be
deemed a part hereof and shall qualify any representation made herein to the extent of the
disclosure contained in the corresponding section of the Disclosure Schedules, the Company hereby
represents and warrants as of the date hereof and the Closing Date (except for the representations
and warranties that speak as of a specific date, which shall be made as of such date), to each of
the Purchasers and to the Placement Agent:



          (a) Subsidiaries. The Company has no direct or indirect subsidiaries other
than those listed in Schedule 3.1(a) hereto. Except as disclosed in Schedule
3.1(a) hereto, the Company (i) owns, directly or indirectly, all of the capital stock or
comparable equity interests of each Subsidiary free and clear of any and all Liens, and all the
issued and outstanding shares of capital stock or comparable equity interest 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, and (ii) does not own, directly or indirectly, any long-term
debt of or equity interest in any other Person.




          (b) Organization and Qualification. The Company and each of its
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 corporate power and authority to own or lease 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. The Company and each of its
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 a Material
Adverse Effect, and no Proceeding has been instituted, is pending, or, to the Company’s Knowledge,
has been threatened in any such jurisdiction revoking, limiting or curtailing or seeking to revoke,
limit or curtail such power and authority or qualification.




          (c) Authorization; Enforcement; Validity. The Company has the requisite
corporate power and authority to enter into and to consummate the transactions contemplated by each
of the Transaction Documents to which it is a party and otherwise to carry out its obligations
hereunder and thereunder. The Company’s execution and delivery of each of the Transaction
Documents to which it is a party and the consummation by it of the transactions contemplated hereby
and thereby (including, but not limited to, the sale and delivery of the Shares and the Warrants
and the reservation for issuance and the subsequent issuance of the Warrant Shares upon exercise
of the Warrants) have been duly authorized by all
necessary corporate action on the part of the Company, and no further corporate action is
required by the Company, its Board of Directors or its stockholders in connection therewith other
than in connection with the Required Approvals. Each of the Transaction Documents to which it is a
party has been (or upon delivery will have been) duly executed by the Company and is, or when
delivered in accordance with the terms hereof, will constitute the legal, valid and binding
obligation of the Company enforceable against the Company in accordance with its terms, except (i)
as such enforceability may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, liquidation or similar laws relating to, or affecting generally the enforcement of,
creditors’ rights and remedies or by other equitable principles of general




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application, (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.




          (d) No Conflicts. The execution, delivery and performance by the Company of
the Transaction Documents to which it is a party and the consummation by the Company of the
transactions contemplated hereby or thereby (including, without limitation, the issuance of the
Shares and Warrants and the reservation for issuance and issuance of the Warrant Shares) do not and
will not (i) conflict with or violate any provisions of the Company’s or any Subsidiary’s
certificate or articles of incorporation, bylaws or otherwise result in a violation of the
organizational documents of the Company or any Subsidiary, (ii) conflict with, or constitute a
default (or an event that with notice or lapse of time or both would result in 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 termination, amendment, acceleration or cancellation
(with or without notice, lapse of time or both) of, any Material Contract, or (iii) subject to the
Required Approvals, conflict with or result in a violation of any law, rule, regulation, order,
judgment, injunction, decree or other restriction of any court or governmental authority to which
the Company or a Subsidiary is subject (including federal and state securities laws and regulations
and the rules and regulations, assuming the correctness of the representations and warranties made
by the Purchasers herein, of any self-regulatory organization to which the Company or its
securities are subject, including all applicable Trading Markets), or by which any property or
asset of the Company or a Subsidiary is bound or affected, except in the case of clauses (ii) and
(iii) such as would not, individually or in the aggregate, have or reasonably be expected to result
in a Material Adverse Effect or a material adverse effect on the legality, validity or
enforceability of any Transaction Document or on the Company’s ability to perform in any material
respect on a timely basis its obligations under any Transaction Document.




          (e) Filings, Consents and Approvals. Neither the Company nor any of its
Subsidiaries is required to obtain any consent, waiver, approval, authorization or order of, give
any notice to, or make any filing or registration with, any court or other federal, state, local or
other governmental authority, holder of outstanding securities of the Company or any Subsidiary or
other Person in connection with the execution, delivery and performance by the Company of the
Transaction Documents (including the issuance of the Securities), other than (i) the filing with
the Commission of one or more Registration Statements in accordance with the requirements of the
Registration Rights Agreement, (ii) filings required by applicable state securities laws, (iii) the
filing of a Notice of Sale of Securities on Form D with the Commission under Regulation D of the
Securities Act, (iv) the filing of any requisite notices and/or application(s) to the Principal
Trading Market for the issuance and sale of the Securities and the listing of the Shares and
Warrant Shares for trading or quotation, as the case may be, thereon in the time and manner
required thereby, (v) the filings required in accordance with Section 4.5 of this
Agreement, (vi) notices required under the IRA, and (vii) those that have been made or obtained
prior to the date of this Agreement (collectively, the “Required Approvals”).




          (f) Issuance of the Securities. The Shares have been duly authorized and,
when issued and paid for in accordance with the terms of the Transaction Documents, will be duly
and validly issued, fully paid and nonassessable and free and clear of all Liens, other than
restrictions on transfer provided for in
the Transaction Documents or imposed by applicable securities laws, and shall not be subject
to preemptive or similar rights. The Warrants have been duly authorized and, when issued and paid
for in accordance with the terms of the Transaction Documents, will be duly and validly issued,
free and clear of all Liens, other than restrictions on transfer provided for in the Transaction




10









 







Documents
or imposed by applicable securities laws, and shall not be subject to preemptive or similar rights
of stockholders. Assuming the accuracy of the representations and warranties of the Purchasers in
this Agreement, the Securities will be issued in compliance with all applicable federal and state
securities laws. As of the Closing Date, the Company shall have reserved from its duly authorized
capital stock the number of shares of Common Stock issuable upon exercise of the Warrants (without
taking into account any limitations on the exercise of the Warrants set forth in the Warrants).
The Company shall, so long as any of the Warrants are outstanding, take all action necessary to
reserve and keep available out of its authorized and unissued capital stock, solely for the purpose
of effecting the exercise of the Warrants, the number of shares of Common Stock issuable upon
exercise of the Warrants (without taking into account any limitations on the exercise of the
Warrants set forth in the Warrants).




          (g) Capitalization. The number of shares and type of all authorized, issued
and outstanding capital stock, options and other securities of the Company (whether or not
presently convertible into or exercisable or exchangeable for shares of capital stock of the
Company) is set forth in Schedule 3.1(g) hereto. The Company has not issued any capital
stock since the date of its most recently filed SEC Report other than to reflect stock option and
warrant exercises or vesting of restricted stock units that do not, individually or in the
aggregate, have a material affect on the issued and outstanding capital stock, options and other
securities. No Person has any right of first refusal, preemptive right, right of participation,
or any similar right to participate in the transactions contemplated by the Transaction Documents
that have not been effectively waived as of the Closing Date. Except as set forth on Schedule
3.1(g) or a result of the purchase and sale of the Shares and Warrants, 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 exercisable or
exchangeable for, or giving any Person any right to subscribe for or acquire any shares of Common
Stock, or contracts, commitments, understandings or arrangements by which the Company or any
Subsidiary is or may become bound to issue additional shares of Common Stock or Common Stock
Equivalents. The issuance and sale of the Shares and Warrants will not obligate the Company to
issue shares of Common Stock or other securities to any Person (other than the Purchasers) and will
not result in a right of any holder of Company securities to adjust the exercise, conversion,
exchange or reset price under any of such securities. All of the outstanding shares of capital
stock of the Company are validly issued, fully paid and nonassessable, have been issued in
compliance with all applicable 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. Other than the IRA,
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 Company’s Knowledge, between
or among any of the Company’s stockholders.




          (h) SEC Reports; Disclosure Materials. The Company has filed all reports,
schedules, forms, statements and other documents required to be filed by it under the Exchange Act,
including pursuant to Section 13(a) or 15(d) thereof, for the two years preceding the date hereof
(or such shorter period as the Company was required by law or regulation to file such material)
(the foregoing materials, including the exhibits thereto and documents incorporated by reference
therein, being collectively referred to herein as the “SEC Reports”, and the SEC Reports, together
with the Disclosure Schedules, being collectively referred to
as the “Disclosure Materials”) 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,
except where the failure to file on a timely basis would not have or reasonably be expected to
result in a Material Adverse Effect and would not have or reasonably be expected to result in any
limitation or prohibition on the Company’s ability to register the Shares and Warrant Shares for
resale on Form S-1 or on any Purchaser from using Rule 144 to resell any Securities. As of their
respective filing dates, or to the extent corrected by a subsequent amendment, the SEC Reports
complied in all material respects with the requirements of the Securities Act and the Exchange Act
and the rules and regulations of the Commission promulgated thereunder, and none of




11









 







the SEC
Reports, when filed, contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary in order to make the statements therein,
in light of the circumstances under which they were made, not misleading. The Company has never
been an issuer subject to Rule 144(i) under the Securities Act. Each of the Material Contracts to
which the Company or any Subsidiary is a party or to which the property or assets of the Company or
any of its Subsidiaries are subject has been filed (or incorporated by reference) as an exhibit to
the SEC Reports.




          (i) Financial Statements. 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 (or
to the extent corrected by a subsequent amendment). Such financial statements have been prepared
in accordance with GAAP applied on a consistent basis during the periods involved, except as may be
otherwise specified in such financial statements or the notes thereto and 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 taken as
a whole 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.




          (j) Material Changes. 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 have been no events, occurrences or developments
that have had or would reasonably be expected to have, either individually or in the aggregate, a
Material Adverse Effect, (ii) the Company has not incurred any material liabilities (contingent or
otherwise) other than (A) trade payables and accrued expenses incurred in the ordinary course of
business consistent with past practice and (B) liabilities not required to be reflected in the
Company’s financial statements pursuant to GAAP or disclosed in filings made with the Commission,
(iii) the Company has not materially altered its method of accounting or the manner in which it
keeps its accounting books and records, (iv) the Company has not declared or made any dividend or
distribution of cash or other property to its stockholders or purchased, redeemed or made any
agreements to purchase or redeem any shares of its capital stock (other than in connection with
repurchases of unvested stock issued to employees of the Company), and (v) the Company has not
issued any equity securities to any officer, director or Affiliate, except Common Stock issued in
the ordinary course as dividends on outstanding preferred stock or issued pursuant to existing
Company stock option or stock purchase plans or executive and director compensation arrangements
disclosed in the SEC Reports. Except for the issuance of the Shares and Warrants contemplated by
this Agreement, no event, liability or development has occurred or exists with respect to the
Company or its Subsidiaries or their respective business, properties, operations or financial
condition, that would be required to be disclosed by the Company under applicable securities laws
at the time this representation is made that has not been publicly disclosed at least one (1)
Trading Day prior to the date that this representation is made.




          (k) Litigation. There is no Action which (i) adversely affects or challenges the
legality, validity or enforceability of any of the Transaction Documents or the Securities or (ii)
would, if there were an unfavorable decision, individually or in the aggregate, have or reasonably
be expected to result in a Material Adverse Effect. Neither the Company nor any Subsidiary, nor to
the
Company’s Knowledge 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 Company’s Knowledge there is not pending
or contemplated, any investigation by the Commission or the Principal Trading Market 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 of its Subsidiaries under the Exchange Act or the Securities Act.





12











 





          (l) Employment Matters. No material labor dispute exists or, to the
Company’s Knowledge, is imminent with respect to any of the employees of the Company which would
have or reasonably be expected to result in a Material Adverse Effect. None of the Company’s or
any Subsidiary’s employees is a member of a union that relates to such employee’s relationship with
the Company, and neither the Company nor any of its Subsidiaries is a party to a collective
bargaining agreement, and the Company and each Subsidiary believes that its relationship with its
employees is good. No executive officer of the Company (as defined in Rule 501(f) of the
Securities Act) has notified the Company or any such Subsidiary that such officer intends to leave
the Company or any such Subsidiary or otherwise terminate such officer’s employment with the
Company or any such Subsidiary. To the Company’s Knowledge, no executive officer, is, or is now
expected to be, in violation of any term of any material term of any employment contract,
confidentiality, disclosure or proprietary information agreement or non-competition agreement, or
any other contract or agreement or any restrictive covenant in favor of a third party, and to the
Company’s Knowledge, the continued employment of each such executive officer does not subject the
Company or any Subsidiary to any liability with respect to any of the foregoing matters. 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, have or reasonably be expected to result in a Material Adverse Effect.




          (m) Compliance. Neither the Company nor any of its Subsidiaries (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 of its
Subsidiaries under), nor has the Company or any of its Subsidiaries received written notice of a
claim that it is in default under or that it is in violation of, any Material Contract (whether or
not such default or violation has been waived), (ii) is in violation of any order of any court,
arbitrator or governmental body having jurisdiction over the Company or its properties or assets,
or (iii) is in violation of, or in receipt of written notice that it is in violation of, any
statute, rule or regulation of any governmental authority applicable to the Company, except in each
case as would not, individually or in the aggregate, have or reasonably be expected to result in a
Material Adverse Effect.




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




          (o) Title to Assets. The Company and its Subsidiaries have good and
marketable title in fee simple to all real property owned by them. The Company and its
Subsidiaries have good and marketable title to all tangible personal property owned by them that is
material to the business of the Company and its Subsidiaries, taken as whole, in each case free and
clear of all Liens except such as do not materially affect the value of such property and do not
interfere with the use made and proposed to be made of such property by the Company and any of its
Subsidiaries. Any real property and facilities held under lease by the Company and any of its
Subsidiaries are held by them under valid, subsisting and enforceable leases with such exceptions
as are not material and do not interfere with the use made and proposed to be made of such property
and buildings by the Company and its Subsidiaries.




          (p) Patents and Trademarks. To the Company’s Knowledge, the Company and the
Subsidiaries own, possess, license or have other rights to use, all patents, patent applications,
trade and service marks, trade and service mark applications and registrations, trade names, trade
secrets, inventions, copyrights, licenses, technology, know-how and other intellectual property
rights and similar rights described





13









 







in the SEC Reports as necessary or material for use in connection with their respective
businesses in all material respects (collectively, the “ Intellectual Property Rights”). Neither
the Company nor any Subsidiary has knowingly infringed, and 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 violates or infringes, upon the patent, trademark, copyright, trade
secret or other proprietary rights of any Person. There is no pending or, to the Company’s
Knowledge, threatened action, suit, proceeding or claim by any Person that the Company’s business
as now conducted infringes or otherwise violates any patent, trademark, copyright, trade secret or
other proprietary rights of another. To the Company’s Knowledge, there is no existing infringement
by another Person of any of the Intellectual Property Rights. To the Company’s Knowledge, there
are no facts or circumstances which would form any basis for any claim of 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 Property Rights. None of the technology employed by the Company has been obtained or
is being used by the Company in violation of any contractual obligation binding on the Company or
any of its officers, directors or employees or otherwise in violation of the rights of any Person.




          (q) Insurance. The Company and each of the Subsidiaries are insured by
insurers of recognized financial responsibility against such losses and risks and in such amounts
as the Company believes to be prudent and customary in the businesses and locations in which the
Company and the Subsidiaries are engaged, including, but not limited to, directors and officers
insurance coverage. Neither the Company nor any of its Subsidiaries has received any notice of
cancellation of any such insurance, nor, to the Company’s Knowledge, will it or any Subsidiary be
unable to renew their respective existing insurance coverage as and when such coverage expires or
to obtain similar coverage from similar insurers as may be necessary to continue its business
without a significant increase in cost.




          (r) Transactions With Affiliates and Employees. Except as set forth in the
SEC Reports, none of the officers or directors of the Company or its Subsidiaries and, to the
Company’s Knowledge, none of the employees of the Company or its Subsidiaries is presently a party
to any transaction with the Company or any Subsidiary (other than for ordinary course services as
employees, officers and directors), that would be required to be disclosed pursuant to Item 404 of
Regulation S-K promulgated under the Securities Act.




          (s) Internal Accounting Controls. The Company maintains a system of
internal accounting controls sufficient to provide reasonable assurance that (i) transactions are
executed in accordance with management’s general or specific authorizations, (ii) transactions are
recorded as necessary to permit preparation of financial statements in conformity with GAAP and to
maintain asset and liability accountability, (iii) access to assets or incurrence of liabilities is
permitted only in accordance with management’s general or specific authorization, and (iv) the
recorded accountability for assets and liabilities is compared with the existing assets and
liabilities at reasonable intervals and appropriate action is taken with respect to any
differences.




          (t) Sarbanes-Oxley; Disclosure Controls. The Company is in compliance in
all material respects with all of the provisions of the Sarbanes-Oxley Act of 2002 which are
applicable to it as of the Closing Date. The Company has established disclosure controls and
procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under the Exchange Act) for the
Company and designed such disclosure controls and procedures to ensure that information required to
be disclosed by the Company in the reports it files or submits under the Exchange Act is recorded,
processed, summarized and reported, within the time periods specified in the Commission’s rules and
forms. The Company’s certifying officers have evaluated the effectiveness of the Company’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






14









 







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 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 internal control over financial reporting.




          (u) Certain Fees. No person or entity will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim against or upon the
Company or a Purchaser for any commission, fee or other compensation pursuant to any agreement,
arrangement or understanding entered into by or on behalf of the Company, other than the Placement
Agent with respect to the offer and sale of the Shares and Warrants (which placement agent fees are
being paid by the Company). The Purchasers 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 paragraph (u) that may be due in connection with the transactions contemplated by the
Transaction Documents. The Company shall indemnify, pay, and hold each Purchaser harmless against,
any liability, loss or expense (including, without limitation, attorneys’ fees and out-of-pocket
expenses) arising in connection with any such right, interest or claim.




          (v) Private Placement. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2 of this Agreement and the accuracy
of the information disclosed in the Accredited Investor Questionnaires provided by the Purchasers,
no registration under the Securities Act is required for the offer and sale of the Securities by
the Company to the Purchasers under the Transaction Documents. The issuance and sale of the
Securities hereunder does not contravene the rules and regulations of the Principal Trading Market.




          (w) Investment Company The Company is not, and immediately after receipt of
payment for the Shares and 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.




          (x) Registration Rights. Other than each of the Purchasers or as set forth
in Schedule 3.1(x) hereto, no Person has any right to cause the Company to effect the
registration under the Securities Act of any securities of the Company.




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




          (z) Application of Takeover Protections; Rights Agreements. The Company and
the 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 charter documents or
the laws of its state of incorporation that is or could reasonably be expected to become applicable
to any of the Purchasers as a result of the Purchasers and the Company fulfilling their obligations
or exercising their rights under the Transaction Documents, including, without limitation, the
Company’s issuance of the Securities and the Purchasers’ ownership of the Securities.







15









 








          (aa) Disclosure. The Company confirms that it has not provided, and to the
Company’s Knowledge, none of its officers or directors nor any other Person acting on its or their
behalf has provided, and it has not authorized the Placement Agent to provide, any Purchaser or its
respective agents or counsel with any information that it believes constitutes material, non-public
information except insofar as the existence, provisions and terms of the Transaction Documents and
the proposed transactions hereunder may constitute such information, all of which will be disclosed
by the Company in the Press Release as contemplated by Section 4.5 hereof. The Company
understands and confirms that the Purchasers will rely on the foregoing representations in
effecting transactions in securities of the Company.




          (bb) No Integrated Offering. Assuming the accuracy of the Purchasers’
representations and warranties set forth in Section 3.2, none of the Company, its
Subsidiaries nor, to the Company’s Knowledge, any of its Affiliates or any Person acting on its
behalf has, directly or indirectly, at any time within the past six (6) months, made any offers or
sales of any Company security or solicited any offers to buy any security under circumstances that
would (i) eliminate the availability of the exemption from registration under Regulation D under
the Securities Act in connection with the offer and sale by the Company of the Securities as
contemplated hereby or (ii) cause the offering of the Securities pursuant to the Transaction
Documents to be integrated with prior offerings by the Company for purposes of any applicable law,
regulation or stockholder approval provisions, including, without limitation, under the rules and
regulations of any Trading Market on which any of the securities of the Company are listed or
designated.




          (cc) Tax Matters. The Company and each of its Subsidiaries (i) has
accurately and timely prepared and filed all foreign, federal and state income and all other tax
returns, reports and declarations required by any jurisdiction to which it is subject, (ii) has
paid all taxes and other governmental assessments and charges that are material in amount, shown or
determined to be due on such returns, reports and declarations, except those being contested in
good faith, with respect to which adequate reserves have been set aside on the books of the Company
and (iii) has set aside on its books provisions reasonably adequate for the payment of all taxes
for periods subsequent to the periods to which such returns, reports or declarations apply, except,
in the case of clauses (i) and (ii) above, where the failure to so pay or file any such tax,
assessment, charge or return would not have or reasonably be expected to result in a Material
Adverse Effect. There are no unpaid taxes in any material amount claimed to be due by the Company
or any of its Subsidiaries by the taxing authority of any jurisdiction.




          (dd) Environmental Matters. Neither the Company nor any of its Subsidiaries
(i) is in violation of any statute, rule, regulation, decision or order of any governmental agency
or body or any court, domestic or foreign, relating to the use, disposal or release of hazardous or
toxic substances or relating to the protection or restoration of the environment or human exposure
to hazardous or toxic substances (collectively, “Environmental Laws”), (ii) owns or operates any
real property contaminated with any substance that is in violation of any Environmental Laws, (iii)
is liable for any off-site disposal or contamination pursuant to any Environmental Laws, or (iv) is
subject to any claim relating to any Environmental Laws; which violation, contamination, liability
or claim has had or would have, individually or in the aggregate, a Material Adverse Effect; and
there is no pending investigation or, to the Company’s Knowledge, investigation threatened in
writing that might lead to such a claim.




          (ee) No General Solicitation. Neither the Company nor, to the Company’s
Knowledge, any person acting on behalf of the Company has offered or sold any of the Securities by
any form of general solicitation or general advertising.




          (ff) Foreign Corrupt Practices. Neither the Company nor its Subsidiaries,
nor to the Company’s Knowledge, any agent or other person acting on behalf of the Company or its
Subsidiaries, has: (i) directly or indirectly, used any funds for unlawful contributions, gifts,
entertainment or other unlawful expenses related to foreign or domestic political activity,
(ii) made any unlawful payment to foreign or






16









 







domestic government officials or employees or to any foreign or domestic political parties or
campaigns from corporate funds, (iii) failed to disclose fully any contribution made by the Company
or its Subsidiaries (or made by any person acting on its behalf of which the Company is aware)
which is in violation of law or (iv) violated in any material respect any provision of the Foreign
Corrupt Practices Act of 1977, as amended.




          (gg) Off Balance Sheet Arrangements. There is no transaction, arrangement,
or other relationship between the Company (or any Subsidiary) and an unconsolidated or other off
balance sheet entity that is required to be disclosed by the Company in SEC Reports and is not so
disclosed or that otherwise would have or reasonably be expected to result in a Material Adverse
Effect.




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




          (ii) Regulation M Compliance. The Company has not, and to the Company’s
Knowledge no one acting on its behalf has, (i) taken, 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 of the Company or (iii)
paid or agreed to pay to any Person any compensation for soliciting another to purchase any other
securities of the Company, other than, in the case of clauses (ii) and (iii), compensation paid to
the Placement Agent in connection with the placement of the Shares and Warrants.




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




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




          (ll) Government Licenses. The Company and its Subsidiaries possesses such
permits, certificates, licenses, approvals, consents and other authorizations (collectively,
“Governmental Licenses”) issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business of the Company as described in the SEC
Reports, including without limitation, all such approvals, certificates, authorizations and permits
required by the United States Food and Drug Administration (the “FDA”) and/or other federal, state,
local or foreign agencies or bodies engaged in the regulation of clinical trials, pharmaceuticals,
or biohazardous substances or materials, except where the






17









 







failure so to possess would not, individually or in the aggregate, have or reasonably be
expected to have a Material Adverse Effect; the Company is in compliance with the terms and
conditions of all such Governmental Licenses, except where the failure so to comply would not,
individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect;
all of the Governmental Licenses are valid and in full force and effect, except when the invalidity
of such Governmental Licenses or the failure of such Governmental Licenses to be in full force and
effect would not, individually or in the aggregate, have or reasonably be expected to have a
Material Adverse Effect; and the Company has not received any written notice of proceedings
relating to the revocation or modification of any such Governmental Licenses which, individually or
in the aggregate, if the subject of an unfavorable decision, ruling or finding, would have or
reasonably be expected to have a Material Adverse Effect. Where required by applicable laws and
regulations of the FDA or any foreign regulatory authority, the Company has submitted to the FDA or
any foreign regulatory authority an Investigational New Drug Application, or similar application,
or amendment or supplement thereto for a clinical trial it has conducted or sponsored or is
conducting or sponsoring, except where such failure would not, individually or in the aggregate,
have or reasonably be expected to have a Material Adverse Effect; all such submissions were in
material compliance with applicable laws and rules and regulations when submitted and no material
deficiencies have been asserted by the FDA or such foreign regulatory authority with respect to any
such submissions, except any deficiencies which could not, individually or in the aggregate, have
or reasonably be expected to have a Material Adverse Effect.




          (mm) FDA and Foreign Regulatory Authority. As to each product subject to
the jurisdiction of the FDA under the Federal Food, Drug, and Cosmetic Act, as amended, and the
regulations thereunder (“FDCA”), or any foreign regulatory authority under similar laws and
regulations (including, without limitation, the European Medicines Agency and the Japanese Ministry
of Health and Welfare) that is manufactured, packaged, labeled, tested, distributed, sold, and/or
marketed by the Company or any of its Subsidiaries (each such product, a “Pharmaceutical Product”),
such Pharmaceutical Product is being manufactured, packaged, labeled, tested, distributed, sold
and/or marketed by the Company in compliance with all applicable requirements under FDCA and
similar laws, rules and regulations relating to investigational use, licensure, or application
approval, good manufacturing practices, good laboratory practices, good clinical practices,
labeling, advertising, record keeping and filing of reports, except where the failure to be in
compliance would not have or reasonably be expected to result in a Material Adverse Effect. There
is no pending, completed or, to the Company’s Knowledge, threatened, action (including any lawsuit,
arbitration, or legal or administrative or regulatory proceeding, charge, complaint, or
investigation) against the Company or any of its Subsidiaries, and none of the Company or any of
its Subsidiaries has received any notice, warning letter or other communication from the FDA or any
other governmental entity, which (i) contests the uses of, the distribution of, the manufacturing
or packaging of, the testing of, the sale of, or the labeling and promotion of any Pharmaceutical
Product, (ii) requests the recall, suspension, or seizure of, or withdraws or orders the withdrawal
of advertising or sales promotional materials relating to, any Pharmaceutical Product, (iii)
imposes a clinical hold on any clinical investigation by the Company or any of its Subsidiaries,
(iv) enjoins production at any facility of the Company or any of its Subsidiaries, (v) enters or
proposes to enter into a consent decree of permanent injunction with the Company or any of its
Subsidiaries, or (vi) otherwise alleges any violation of any laws, rules or regulations by the
Company or any of its Subsidiaries, and which, either individually or in the aggregate, would have
or reasonably be expected to result in a Material Adverse Effect. The properties, business and
operations of the Company and its Subsidiaries are being conducted in all material respects in
accordance with all applicable laws, rules and regulations of the FDA and any foreign regulatory
authority. Neither the Company nor its Subsidiaries have been informed by the FDA or any foreign
regulatory authority that the FDA or such foreign regulatory authority will prohibit the marketing,
sale, license or use in the applicable jurisdiction of any product proposed to be developed,
produced or marketed by the Company or its Subsidiaries.







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          (nn) No Additional Agreements. The Company does not have any agreement or
understanding with any Purchaser with respect to the transactions contemplated by the Transaction
Documents other than as specified in the Transaction Documents.




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



          (a) Organization; Authority. Such Purchaser is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its organization with
the requisite corporate or partnership power and authority to enter into and to consummate the
transactions contemplated by the applicable Transaction Documents and otherwise to carry out its
obligations hereunder and thereunder. The execution and delivery of this Agreement by such
Purchaser and performance by such Purchaser of the transactions contemplated by this Agreement have
been duly authorized by all necessary corporate or, if such Purchaser is not a corporation, such
partnership, limited liability company or other applicable like action, on the part of such
Purchaser. Each Transaction Document to which it is a party has been duly executed by such
Purchaser, and when delivered by such Purchaser in accordance with the terms hereof, will
constitute the valid and legally binding obligation of such Purchaser, enforceable against it in
accordance with its terms, except (i) as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors’ rights and remedies or by other equitable
principles of general application, (ii) as limited by laws relating to the availability of specific
performance, injunctive relief or other equitable remedies and (iii) insofar as indemnification and
contribution provisions may be limited by applicable law.




          (b) No Conflicts. The execution, delivery and performance by such Purchaser
of this Agreement and the Registration Rights Agreement and the consummation by such Purchaser of
the transactions contemplated hereby and thereby will not (i) result in a violation of the
organizational documents of such Purchaser, (ii) conflict with, or constitute a default (or an
event which with notice or lapse of time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which such Purchaser is a party, or (iii) result in a violation of any law, rule,
regulation, order, judgment or decree (including federal and state securities laws) applicable to
such Purchaser, except in the case of clauses (ii) and (iii) above, for such conflicts, defaults,
rights or violations which would not, individually or in the aggregate, reasonably be expected to
have a material adverse effect on the ability of such Purchaser to perform its obligations
hereunder.




          (c) Investment Intent. Such Purchaser understands that the Securities are
“restricted securities” and have not been registered under the Securities Act or any applicable
state securities law and is acquiring the Shares and Warrants and, upon exercise of the Warrants,
will acquire the Warrant Shares issuable upon exercise thereof as principal for its own account and
not with a view to, or for distributing or reselling such Securities or any part thereof in
violation of the Securities Act or any applicable state securities laws, provided, however, that by
making the representations herein, such Purchaser does not agree to hold any of the Securities for
any minimum period of time and reserves the right, subject to the provisions of this Agreement and
the Registration Rights Agreement, at all times to sell or otherwise dispose of all or any part of
such Securities pursuant to an effective registration statement under the Securities Act or under
an exemption from such registration and in compliance with applicable federal and state securities
laws. Such Purchaser is acquiring the Securities hereunder in the ordinary course of its business.
Such Purchaser does not presently have any agreement, plan or understanding, directly or
indirectly, with any Person to distribute or effect any distribution of any of the Securities (or
any securities which are derivatives thereof) to or through any person or entity; such Purchaser is
not a registered broker-dealer under Section 15 of the Exchange Act or an entity engaged in a
business that would require it to be so registered as a broker-dealer.







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          (d) Purchaser Status. At the time such Purchaser was offered the Shares and
Warrants, it was, and at the date hereof it is, and on each date on which it exercises the Warrants
it will be, an “accredited investor” as defined in Rule 501(a) under the Securities Act.




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




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




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




          (h) Certain Trading Activities. Other than with respect to the transactions
contemplated herein as of the date hereof, since the time that such Purchaser was first contacted by the Company, the
Placement Agent or any other Person regarding the transactions contemplated hereby, neither the
Purchaser nor any Affiliate of such Purchaser which (x) had knowledge of the transactions
contemplated hereby, (y) has or shares discretion relating to such Purchaser’s investments or
trading or information concerning such Purchaser’s investments, including in respect of the
Securities, and (z) is subject to such Purchaser’s review or input concerning such Affiliate’s
investments or trading (collectively, “Trading Affiliates”) has directly or indirectly, nor has any
Person acting on behalf of or pursuant to any understanding with such Purchaser or Trading
Affiliate, effected or agreed to effect any purchases or sales of the securities of the Company
(including, without limitation, any Short Sales involving the Company’s securities).
Notwithstanding the foregoing, in the case of a Purchaser and/or Trading Affiliate that is,
individually or collectively, a multi-managed investment bank or vehicle whereby separate portfolio
managers manage separate portions of such Purchaser’s or Trading Affiliate’s assets and the
portfolio managers have no direct knowledge of the investment decisions made by the portfolio
managers managing other portions of such Purchaser’s or Trading Affiliate’s assets, the
representation set forth above shall apply only with respect to the portion of assets managed by
the portfolio manager that have knowledge about the financing transaction contemplated by this
Agreement. Other than to other Persons party to this Agreement, such Purchaser has maintained the
confidentiality of all disclosures made to it in connection with this transaction (including the
existence and terms of this transaction). Notwithstanding the foregoing, for avoidance of doubt,
nothing contained herein shall constitute a representation or warranty, or preclude any actions,
with respect to the identification of the availability of, or securing of, available shares to
borrow in order to effect short sales or similar transactions in the future.







20









 








          (i) Brokers and Finders. No Person will have, as a result of the
transactions contemplated by this Agreement, any valid right, interest or claim against or upon the
Company or any Purchaser for any commission, fee or other compensation pursuant to any agreement,
arrangement or understanding entered into by or on behalf of the Purchaser.




          (j) Independent Investment Decision. Such Purchaser has independently
evaluated the merits of its decision to purchase Securities pursuant to the Transaction Documents,
and such Purchaser confirms that it has not relied on the advice of any other Purchaser’s business
and/or legal counsel in making such decision. Such Purchaser understands that nothing in this
Agreement or any other materials presented by or on behalf of the Company to the Purchaser in
connection with the purchase of the Securities constitutes legal, tax or investment advice. Such
Purchaser has consulted such legal, tax and investment advisors as it, in its sole discretion, has
deemed necessary or appropriate in connection with its purchase of the Securities. Such Purchaser
understands that the Placement Agent has acted solely as the agent of the Company in this placement
of the Shares and Warrants and such Purchaser has not relied on the business or legal advice of the
Placement Agent or any of its agents, counsel or Affiliates in making its investment decision
hereunder, and confirms that none of such Persons has made any representations or warranties to
such Purchaser in connection with the transactions contemplated by the Transaction Documents.




          (k) Reliance on Exemptions. Such Purchaser understands that the Securities
being offered and sold to it in reliance on specific exemptions from the registration requirements
of United States federal and state securities laws and that the Company is relying in part upon the
truth and accuracy of, and such Purchaser’s compliance with, the representations, warranties,
agreements, acknowledgements and understandings of such Purchaser set forth herein in order to
determine the availability of such exemptions and the eligibility of such Purchaser to acquire the
Securities.




          (l) No Governmental Review. Such Purchaser understands that no United
States federal or state agency or any other government or governmental agency has passed on or made
any recommendation or endorsement of the Securities or the fairness or suitability of the
investment in the Securities nor have such authorities passed upon or endorsed the merits of the
offering of the Securities.




          (m) Regulation M. Such Purchaser is aware that the anti-manipulation rules
of Regulation M under the Exchange Act may apply to sales of Common Stock and other activities with
respect to the Common Stock by the Purchasers.




          (n) Beneficial Ownership. Assuming the accuracy of the Company’s
representations and warranties set forth in Section 3.1(g), the purchase by such Purchaser
of the Shares and Warrants issuable to it at the Closing will not result in such Purchaser
(individually or together with any other Person with whom such Purchaser has identified, or will
have identified, itself as part of a “group” in a public filing made with the Commission involving
the Company’s securities) acquiring, or obtaining the right to acquire, in excess of 19.999% of the
outstanding shares of Common Stock or the voting power of the Company on a post transaction basis
that assumes that such Closing shall have occurred. Such Purchaser does not presently intend to,
alone or together with others, make a public filing with the Commission to disclose that it has (or
that it together with such other Persons have) acquired, or obtained the right to acquire, as a
result of such Closing (when added to any other securities of the Company that it or they then own
or have the right to acquire), in excess of 19.999% of the outstanding shares of Common Stock or
the voting power of the Company on a post transaction basis that assumes that each Closing shall
have occurred.




          (o) Residency. Such Purchaser’s residence (if an individual) or offices in
which its investment decision with respect to the Securities was made (if an entity) are located at
the address immediately below such Purchaser’s name on its signature page hereto.







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The Company and each of the Purchasers acknowledge and agree that no party to this Agreement has
made or makes any representations or warranties with respect to the transactions contemplated
hereby other than those specifically set forth in this Article III and the Transaction
Documents.




ARTICLE IV.

OTHER AGREEMENTS OF THE PARTIES



     4.1 Transfer Restrictions.



          (a) Compliance with Laws. Notwithstanding any other provision of this
Article IV, each Purchaser covenants that the Securities may be disposed of only pursuant
to an effective registration statement under, and in compliance with the requirements of, the
Securities Act, or pursuant to an available exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act, and in compliance with any applicable state and
federal securities laws. In connection with any transfer of the Securities other than (i) pursuant
to an effective registration statement, (ii) to the Company, (iii) pursuant to Rule 144 (provided
that the Purchaser provides the Company with reasonable assurances (in the form of seller and, if
applicable, broker representation letters) that the securities may be sold pursuant to such rule)
or (iv) in connection with a bona fide pledge as contemplated in Section 4.1(b), the
Company may require the transferor thereof to provide to the Company an opinion of counsel selected
by the transferor and reasonably acceptable to the Company, the form and substance of which opinion
shall be reasonably satisfactory to the Company, to the effect that such transfer does not require
registration of such transferred Securities under the Securities Act. As a condition of transfer,
any such transferee shall agree in writing to be bound by the terms of this Agreement and the
Registration Rights Agreement and shall have the rights of a Purchaser under this Agreement and the
Registration Rights Agreement with respect to such transferred Securities. Notwithstanding the
foregoing, the Company hereby consents to and agrees to register on the books of the Company and
with its Transfer Agent, without any legal opinion, except to the extent required by the Company’s
Transfer Agent, any transfer of the Securities by a Purchaser to an Affiliate of such Purchaser;
provided, that the transferee certifies to the Company that it is an “accredited investor” as
defined in Rule 501(a) under the Securities Act and provided that such Affiliate does not request
any removal of any existing legends on any certificate evidencing the Securities.




          (b) Legends. Certificates evidencing the Securities shall bear any legend as required
by the “blue sky” laws of any state and a restrictive legend in substantially the following form,
until such time as they are not required under Section 4.1(c):





NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF
THESE SECURITIES HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), OR APPLICABLE STATE SECURITIES LAWS. THE
SECURITIES MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I)
IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE
SECURITIES UNDER THE SECURITIES ACT OR (B) AN AVAILABLE EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS OR
BLUE SKY LAWS OR (II) UNLESS SOLD PURSUANT TO RULE 144 UNDER THE
SECURITIES ACT. NOTWITHSTANDING THE FOREGOING, THE SECURITIES MAY BE
PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR
FINANCING ARRANGEMENT SECURED BY THE SECURITIES.



22









 





          The Company acknowledges and agrees that a Purchaser may from time to time pledge, and/or
grant a security interest in, some or all of the legended Securities in connection with applicable
securities laws, pursuant to a bona fide margin agreement in compliance with a bona fide margin
loan. Such a pledge would not be subject to approval or consent of the Company and no legal
opinion of legal counsel to the pledgee, secured party or pledgor shall be required in connection
with the pledge, but such legal opinion shall be required in connection with a subsequent transfer
or foreclosure following default by the Purchaser transferee of the pledge. No notice shall be
required of such pledge, but Purchaser’s transferee shall promptly notify the Company of any such
subsequent transfer or foreclosure of such legended Securities. Each Purchaser acknowledges that
the Company shall not be responsible for any pledges relating to, or the grant of any security
interest in, any of the Securities or for any agreement, understanding or arrangement between any
Purchaser and its pledgee or secured party. At the appropriate Purchaser’s expense, the Company
will execute and deliver such reasonable documentation as a pledgee or secured party of Securities
may reasonably request in connection with a pledge or transfer of the Securities, including the
preparation and filing of any required prospectus supplement under Rule 424(b)(3) of the Securities
Act or other applicable provision of the Securities Act to appropriately amend the list of Selling
Stockholders thereunder. Each Purchaser acknowledges and agrees that, except as otherwise provided
in Section 4.1(c), any Securities subject to a pledge or security interest as contemplated
by this Section 4.1(b) shall continue to bear the legend set forth in this Section
4.1(b) and be subject to the restrictions on transfer set forth in Section 4.1(a).




          (c) Removal of Legends. The legend set forth in Section 4.1(b) above shall be
removed and the Company shall issue a certificate without such legend or any other legend to the
holder of the applicable Securities upon which it is stamped or issue to such holder by electronic
delivery at the applicable balance account at the Depository Trust Company (“DTC”), if (i) such
Securities are registered for resale under the Securities Act (provided that, if the Purchaser is
selling pursuant to the effective registration statement registering the Securities for resale,
such Securities are sold only during such time that such registration statement is effective and
not withdrawn or suspended, and only as permitted by such registration statement), (ii) such
Securities are sold or transferred pursuant to Rule 144 (if the transferor is not an Affiliate of
the Company), or (iii) such Securities are eligible for sale under Rule 144, without the
requirement for the Company to be in compliance with the current public information required under
Rule 144 as to such securities and without volume or manner-of-sale restrictions. Following the
earlier of (i) the Effective Date or (ii) Rule 144 becoming available for the resale of Securities,
without the requirement for the Company to be in compliance with the current public information
required under Rule 144 as to such securities and without volume or manner-of-sale restrictions,
the Company shall cause Company Counsel to issue to the Transfer Agent the legal opinion referred
to in the Irrevocable Transfer Agent Instructions. Any fees (with respect to the Transfer Agent,
Company Counsel or otherwise) associated with the issuance of such opinion or the removal of such
legend shall be borne by the Company. Following the Effective Date, or at such earlier time as a
legend is no longer required for certain Securities, the Company will no later than three (3)
Trading Days following the delivery by a Purchaser to the Company (with notice to the Company) of
(i) a legended certificate representing Shares or Warrant Shares (endorsed or with stock powers
attached, signatures guaranteed, and otherwise in form necessary to affect the reissuance and/or
transfer) or (ii) an Exercise Notice in the manner stated in the Warrants to effect the exercise of
such Warrant in accordance with its terms, and an opinion of counsel to the extent required by
Section 4.1(a) (such third (3rd) Trading Day, the “Legend Removal Date”),
deliver or cause to be delivered to the transferee of such Purchaser or such Purchaser, as
applicable, a certificate representing such Securities that is free from all restrictive and other
legends. The Company may not make any notation on its records or give instructions to the Transfer
Agent that enlarge the restrictions on transfer set forth in this Section 4.1(c).
Certificates for Shares or Warrant Shares subject to legend removal hereunder may be transmitted by
the Transfer Agent to the Purchasers by crediting the account of the Purchaser’s prime broker with
DTC as directed by such Purchaser.




          (d) Irrevocable Transfer Agent Instructions. The Company shall issue irrevocable
instructions to its transfer agent, and any subsequent transfer agent, in substantially the form of
Exhibit E






23









 







attached hereto (the “Irrevocable Transfer Agent Instructions”). The Company represents and
warrants that no instruction other than the Irrevocable Transfer Agent Instructions referred to in
this Section 4.1(d) (or instructions that are consistent therewith) will be given by the
Company to its transfer agent in connection with this Agreement, and that the Securities shall
otherwise be freely transferable on the books and records of the Company as and to the extent
provided in this Agreement and the other Transaction Documents and applicable law. The Company
acknowledges that a breach by it of its obligations under this Section 4.1(d) will cause
irreparable harm to a Purchaser. Accordingly, the Company acknowledges that the remedy at law for
a breach of its obligations under this Section 4.1(d) will be inadequate and agrees, in the
event of a breach or threatened breach by the Company of the provisions of this Section
4.1(d), that a Purchaser shall be entitled, in addition to all other available remedies, to an
order and/or injunction restraining any breach and requiring immediate issuance and transfer,
without the necessity of showing economic loss and without any bond or other security being
required.




          (e) Acknowledgement. Each Purchaser hereunder acknowledges its primary
responsibilities under the Securities Act and accordingly will not sell or otherwise transfer the
Securities or any interest therein without complying with the requirements of the Securities Act.
While the Registration Statement remains effective, each Purchaser hereunder may sell the Shares
and Warrant Shares in accordance with the plan of distribution contained in the Registration
Statement and if it does so it will comply therewith and with the related prospectus delivery
requirements unless an exemption therefrom is available. Each Purchaser, severally and not jointly
with the other Purchasers, agrees that if it is notified by the Company in writing at any time that
the Registration Statement registering the resale of the Shares or the Warrant Shares is not
effective or that the prospectus included in such Registration Statement no longer complies with
the requirements of Section 10 of the Securities Act, the Purchaser will refrain from selling such
Shares and Warrant Shares until such time as the Purchaser is notified by the Company that such
Registration Statement is effective or such prospectus is compliant with Section 10 of the
Securities Act, unless such Purchaser is able to, and does, sell such Shares or Warrant Shares
pursuant to an available exemption from the registration requirements of Section 5 of the
Securities Act. Both the Company and its Transfer Agent, and their respective directors, officers,
employees and agents, may rely on this Section 4.1(e) and each Purchaser hereunder will
indemnify and hold harmless each of such persons from any breaches or violations of this
Section 4.1(e).




          (f) Buy-In. If the Company shall fail for any reason or for no reason to issue to a
Purchaser unlegended certificates within three (3) Trading Days after receipt of all documents
necessary for the removal of the legend set forth above (the “Deadline Date”), then, in addition to
all other remedies available to such Purchaser, if on or after the Trading Day immediately
following such three (3) Trading Day period, such Purchaser purchases (in an open market
transaction or otherwise) shares of Common Stock to deliver in satisfaction of a sale by the holder
of shares of Common Stock that such Purchaser anticipated receiving from the Company without any
restrictive legend (a “Buy-In”), then the Company shall, within three (3) Trading Days after such
Purchaser’s request and in such Purchaser’s sole discretion, either (i) pay cash to the Purchaser
in an amount equal to such Purchaser’s total purchase price (including brokerage commissions, if
any) for the shares of Common Stock so purchased (the “Buy-In Price”), at which point the Company’s
obligation to deliver such certificate (and to issue such shares of Common Stock) shall terminate,
or (ii) promptly honor its obligation to deliver to such Purchaser a certificate or certificates
representing such shares of Common Stock and pay cash to the Purchaser in an amount equal to the
excess (if any) of the Buy-In Price over the product of (a) such number of shares of Common Stock,
times (b) the Closing Bid Price on the Deadline Date.




     4.2 Reservation of Common Stock. The Company shall take all action necessary to at
all times have authorized, and reserved for the purpose of issuance from and after the Closing
Date, the number of shares of Common Stock issuable upon exercise of the Warrants issued at the
Closing (without taking into account any limitations on exercise of the Warrants set forth in the
Warrants).



24









 





     4.3 Furnishing of Information. In order to enable the Purchasers to sell the
Securities under Rule 144, until the date that the Shares and Warrant Shares cease to be
Registrable Securities (as defined in the Registration Rights Agreement), the Company shall use its
reasonable best efforts to timely file (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after the date hereof
pursuant to the Exchange Act. During such period, if the Company is not required to file reports
pursuant to the Exchange Act, it will prepare and furnish to the Purchasers and make publicly
available in accordance with Rule 144(c) such information as is required for the Purchasers to sell
the Securities under Rule 144.



     4.4 Warrant Exercise Procedures. The totality of the procedures required of a
Purchaser in order to exercise its Warrants are as set forth in the Warrants. Subject to
compliance with the terms of the Transaction Documents, no additional legal opinion or other
information or instruction not otherwise specified therein shall be required of such Purchaser to
exercise their Warrants. The Company shall honor exercises of the Warrants, and shall deliver
Warrant Shares, in each case, in accordance with the terms, conditions and time periods set forth
in the Transaction Documents.



     4.5 Integration. The Company shall not, and shall use its commercially reasonable
efforts to ensure that no Affiliate of the Company shall, sell, offer for sale or solicit offers to
buy or otherwise negotiate in respect of any security (as defined in Section 2 of the Securities
Act) that will 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 Purchasers,
or that will be integrated with the offer or sale of the Securities for purposes of the rules and
regulations of any Trading Market such that it would require stockholder approval prior to the
closing of such other transaction unless stockholder approval is obtained before the closing of
such subsequent transaction.



     4.6 Securities Laws Disclosure; Publicity. By 9:00 A.M., New York City time, on the
Trading Day immediately following the date hereof, the Company shall issue a press release (the
“Press Release”) reasonably acceptable to the Placement Agent disclosing all material terms of the
transactions contemplated hereby. On or before 9:00 A.M., New York City time, on the second
(2nd) Trading Day immediately following the execution of this Agreement, the Company
will file a Current Report on Form 8-K with the Commission describing the terms of the Transaction
Documents (and including as exhibits to such Current Report on Form 8-K the material Transaction
Documents (including, without limitation, this Agreement, the form of Warrant and the Registration
Rights Agreement)). Notwithstanding the foregoing, the Company shall not publicly disclose the
name of any Purchaser or an Affiliate of any Purchaser, or include the name of any Purchaser or an
Affiliate of any Purchaser in any press release or filing with the Commission (other than the
Registration Statement) or any regulatory agency or Trading Market, without the prior written
consent of such Purchaser, except (i) as required by federal securities law in connection with (A)
any registration statement contemplated by the Registration Rights Agreement and (B) the filing of
final Transaction Documents (including signature pages thereto) with the Commission and (ii) to the
extent such disclosure is required by law, request of the Staff of the Commission or Trading Market
regulations, in which case the Company shall provide the Purchasers with prior written notice of
such disclosure permitted under this subclause (ii). From and after the issuance of the Press
Release, no Purchaser shall be in possession of any material, non-public information received from
the Company, any Subsidiary or any of their respective officers, directors, employees or agents,
that is not disclosed in the Press Release unless a Purchaser shall have executed a written
agreement, after the issuance of the Press Release, regarding the confidentiality and use of such
information. Each Purchaser, severally and not jointly with the other Purchasers, covenants that
until such time as the transactions contemplated by this Agreement are required to be publicly
disclosed by the Company as described in this Section 4.5, such Purchaser will maintain the
confidentiality of all disclosures made to it in connection with this transaction (including the
existence and terms of this transaction).




25












 





     4.7 Shareholder Rights Plan. No claim will be made or enforced by the Company or,
with the consent of the Company, any other Person, that any Purchaser is an “Acquiring Person”
under any control share acquisition, business combination, poison pill (including any distribution
under a rights agreement) or similar anti-takeover plan or arrangement in effect or hereafter
adopted by the Company, or that any Purchaser could be deemed to trigger the provisions of any such
plan or arrangement, in either case solely by virtue of receiving Securities under the Transaction
Documents or under any other written agreement between the Company and the Purchasers; provided,
however, that no such Purchaser owns any equity in the Company prior to its purchase of the
Securities hereunder.



     4.8 Non-Public Information. Except with respect to the material terms and conditions
of the transactions contemplated by the Transaction Documents, including this Agreement, or as
expressly required by any applicable securities law, the Company covenants and agrees that neither
it, nor any other Person acting on its behalf, will provide any Purchaser or its agents or counsel
with any information regarding the Company that the Company believes constitutes material
non-public information without the express written consent of such Purchaser, unless prior thereto
such Purchaser shall have executed a written agreement regarding the confidentiality and use of
such information. The Company understands and confirms that each Purchaser shall be relying on the
foregoing covenant in effecting transactions in securities of the Company.



     4.9 Use of Proceeds. The Company shall use the net proceeds from the sale of the
Shares and Warrants hereunder for working capital and general corporate purposes and shall not use
such proceeds for: (a) the satisfaction of any portion of the Company’s debt (other than payment of
trade payables in the ordinary course of the Company’s business and prior practices), (b) the
redemption of any Common Stock or Common Stock Equivalents or (c) the settlement of any outstanding
litigation.



     4.10 Indemnification of Purchasers. In consideration of each Purchaser’s execution
and delivery of the Transaction Documents and acquiring the Securities thereunder and in addition
to all of the Company’s other obligations under the Transaction Documents, subject to the
provisions of this Section 4.9, the Company will defend, protect, indemnify and hold each
Purchaser and its directors, officers, shareholders, members, partners, employees 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 Purchaser
(within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and
the directors, officers, shareholders, agents, members, partners, employees (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 persons and direct or indirect investors and any of
the foregoing Persons’ agents or other representatives (each, a “Purchaser Party”) harmless from
and against 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 (“Indemnified Liabilities”) that any such Purchaser
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
any of the other Transaction Documents or (b) any cause of action, suit, proceeding or claim
(including for these purposes a derivative action brought on behalf of the Company) instituted
against the Company, any Purchaser Party, or any other Purchaser in any capacity, or any of them or
their respective Affiliates, by any Person who is not an Affiliate of such Purchaser seeking
indemnification, with respect to or arising out of the execution, delivery, performance or
enforcement of any of the transactions contemplated by the Transaction Documents (unless such
action is based upon a breach of such Purchaser’s representations, warranties or covenants under
the Transaction Documents or any agreements or understandings such Purchaser may have with any such
stockholder or any violations by the Purchaser of state or federal securities laws or any conduct
by such Purchaser which constitutes fraud, gross negligence, willful misconduct or malfeasance). To
the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the
Company shall make the maximum contribution to the payment and satisfaction of each of the
Indemnified Liabilities which is permissible under applicable law. Promptly after



26









 




receipt by any such Person (the “Indemnified Person”) of notice of any demand, claim or
circumstances which would or might give rise to a claim or the commencement of any action,
proceeding or investigation in respect of which indemnity may be sought pursuant to this
Section 4.9, such Indemnified Person shall promptly notify the Company in writing and the
Company shall assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Person, and shall assume the payment of all such Indemnified
Liabilities and any and all other fees and expenses relating to such proceeding; provided,
however, that the failure of any Indemnified Person so to notify the Company shall not relieve the
Company of its obligations hereunder except to the extent that the Company is actually and
materially prejudiced by such failure to notify. In any such proceeding, any Indemnified Person
shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be
at the expense of such Indemnified Person unless: (i) the Company and the Indemnified Person have
mutually agreed to the retention of such counsel; (ii) the Company shall have failed promptly to
assume the defense of such proceeding and to employ counsel reasonably satisfactory to such
Indemnified Person in such proceeding; or (iii) in the reasonable judgment of counsel to such
Indemnified Person, representation of both parties by the same counsel may be inappropriate due to
actual or potential differing interests between them. The Company shall keep such Indemnified
Persons reasonably apprised at all times as to the status of the defense or any settlement
negotiations with respect thereto. The Company shall not be liable for any settlement of any
proceeding effected without its written consent, which consent shall not be unreasonably withheld,
delayed or conditioned. Without the prior written consent of the Indemnified Person, which consent
shall not be unreasonably withheld, delayed or conditioned, the Company shall not effect any
settlement of any pending or threatened proceeding in respect of which any Indemnified Person is or
could have been a party and indemnity could have been sought hereunder by such Indemnified Person,
unless such settlement includes an unconditional release of such Indemnified Person from all
liability arising out of such proceeding and in no event shall such settlement include any
non-monetary limitation on the actions of any Indemnified Person or any of its Affiliates or any
admission of fault or liability on behalf of any such Indemnified Person.




     4.11 Principal Trading Market Listing. In the time and manner required by the
Principal Trading Market, the Company shall (i) prepare and file with such Principal Trading Market
an additional shares listing application covering all of the Shares and Warrant Shares and a
notification form for the change in the number of shares outstanding pertaining thereto, (ii) use
its reasonable best efforts to take all steps necessary to cause all of the Shares and Warrant
Shares to be approved for listing on the Principal Trading Market as promptly as possible
thereafter, (iii) if requested by any Purchaser, provide such Purchaser evidence of such listing to
the extent the Company has any official correspondence relating thereto from the Principal Trading
Market and (iv) during the Effectiveness Period (as defined in the Registration Rights Agreement)
maintain the listing of such Shares and Warrant Shares on the Principal Trading Market.



     4.12 Form D; Blue Sky. The Company agrees to timely file a Form D with respect to the
Securities as required under Regulation D and to provide a copy thereof, promptly upon the written
request of any Purchaser. The Company, on or before the Closing Date, shall take such action as
the Company shall reasonably determine is necessary in order to obtain an exemption for or to
qualify the Securities for sale to the Purchasers under applicable securities or “Blue Sky” laws of
the states of the United States (or to obtain an exemption from such qualification) and shall
provide evidence of such actions promptly upon the written request of any Purchaser.



     4.13 Delivery of Shares and Warrants After Closing. The Company shall deliver, or
cause to be delivered, the respective Shares and Warrants purchased by each Purchaser to such
Purchaser within three (3) Trading Days of the Closing Date. 



     4.14 Short Sales and Confidentiality After The Date Hereof. Such Purchaser shall not,
and shall cause its Trading Affiliates not to, engage, directly or indirectly, in any transactions
in the Company’s securities (including, without limitation, any Short Sales involving the Company’s
securities) during the period from the date hereof until the earlier of such time as (i) the
transactions contemplated by this



27









 




Agreement are first publicly announced as required by and described in Section 4.5 or
(ii) this Agreement is terminated in full pursuant to Section 6.18. Each Purchaser,
severally and not jointly with the other Purchasers, covenants that until such time as the
transactions contemplated by this Agreement are publicly disclosed by the Company as described in
Section 4.5, such Purchaser will maintain the confidentiality of the existence and terms of
this transaction and the information included in the Transaction Documents and Disclosure
Schedules. Notwithstanding the foregoing, no Purchaser makes any representation, warranty or
covenant hereby that it will not engage in Short Sales in the securities of the Company after the
time that the transactions contemplated by this Agreement are first publicly announced as described
in Section 4.5; provided, however, each Purchaser agrees, severally and not jointly with
any Purchasers, that they will not enter into any Net Short Sales (as hereinafter defined) from the
period commencing on the Closing Date and ending on the earliest of (x) the Effective Date of the
initial Registration Statement, (y) the twenty-four (24) month anniversary of the Closing Date or
(z) the date that such Purchaser no longer holds any Securities. For purposes of this Section
4.13, a “Net Short Sale” by any Purchaser shall mean a sale of Common Stock by such Purchaser
that is marked as a short sale and that is made at a time when there is no equivalent offsetting
long position in Common Stock held by such Purchaser. For purposes of determining whether there is
an equivalent offsetting position in Common Stock held by the Purchaser, Warrant Shares that have
not yet been issued pursuant to the exercise of Warrants shall be deemed to be held long by the
Purchaser, and the amount of shares of Common Stock held in a long position shall be all Shares and
unexercised Warrant Shares (ignoring any exercise limitations included therein) issuable to such
Purchaser on such date, plus any shares of Common Stock or Common Stock Equivalents otherwise then
held by such Purchaser. Notwithstanding the foregoing, in the event that a Purchaser is a
multi-managed investment vehicle whereby separate portfolio managers manage separate portions of
such Purchaser’s assets and the portfolio managers have no direct knowledge of the investment
decisions made by the portfolio managers managing other portions of such Purchaser’s assets, the
representation set forth above shall apply only with respect to the portion of assets managed by
the portfolio manager that have knowledge about the financing transaction contemplated by this
Agreement. Moreover, notwithstanding the foregoing, in the event that a Purchaser has sold
Securities pursuant to Rule 144 prior to the Effective Date of the initial Registration Statement
and the Company has failed to deliver certificates without legends prior to the settlement date for
such sale (assuming that such certificates meet the requirements set forth in Section
4.1(c) for the removal of legends), the provisions of this Section 4.13 shall not
prohibit the Purchaser from entering into Net Short Sales for the purpose of delivering shares of
Common Stock in settlement of such sale. Each Purchaser understands and acknowledges, severally
and not jointly with any other Purchaser, that the Commission currently takes the position that
covering a short position established prior to effectiveness of a resale registration statement
with shares included in such registration statement would be a violation of Section 5 of the
Securities Act, as set forth in Item 65, Section 5 under Section A, of the Manual of Publicly
Available Telephone Interpretations, dated July 1997, compiled by the Office of Chief Counsel,
Division of Corporation Finance.






     4.15 Subsequent Equity Sales. From the date hereof until the earlier of (i) one
hundred eighty (180) days following the Closing Date or (ii) thirty (30) days after the Effective
Date, neither the Company nor any Subsidiary shall issue shares of Common Stock or Common Stock
Equivalents other than (1) pursuant to an Approved Stock Plan, or (2) upon the exercise or exchange
of or conversion of any Securities issued hereunder or any Common Stock or Common Stock Equivalents
outstanding as of the date hereof; provided, however, the thirty (30) day period set forth in this
Section 4.14 shall be extended for the number of Trading Days during such period in which
(i) trading in the Common Stock is suspended by any Trading Market, or (ii) following the Effective
Date, the Registration Statement is not effective or the prospectus included in the Registration
Statement may not be used by the Purchasers for the resale of the Shares and Warrant Shares. In
addition, the Company shall use its reasonable best efforts to obtain a waiver of registration
rights under the IRA for the period of time from the date of this Agreement to the Effective Date.



     4.16 Participation Rights. From the Closing Date until the date that is the second
anniversary of the Closing Date, the Company shall not, directly or indirectly, issue, offer, sell,
grant any option or right to



28









 




purchase or otherwise dispose of (or announce any offer, sale, grant of any option or right to
purchase or other disposition of) any Common Stock or Common Stock Equivalents (any such issuance,
offer, sale, grant, disposition or announcement being referred to as a “Subsequent Placement”)
unless the Company shall have first complied with this Section 4.15. The Company acknowledges and
agrees that the right set forth in this Section 4.15 is a right granted by the Company, separately,
to each Purchaser.




          (a) Subject to Section 4.15(d), the Company shall deliver, at least ten (10)
Business Days prior to the closing of a Subsequent Placement, to each Purchaser, a written notice
(the “Offer Notice”) of such proposed sale (the “Offer”) of the securities being offered (the
"Offered Securities”) in a Subsequent Placement, which Offer Notice shall (i) identify and describe
the Offered Securities, (ii) describe the price and other terms upon which they are to be sold, and
the number or amount of the Offered Securities to be sold and (iii) offer to sell to the Purchasers
the Offered Securities, allocated pro rata among the Purchasers (the “Basic Amount”). For purposes
of the foregoing, a Purchaser’s “pro rata” share shall be equal to that number or amount of Offered
Securities in the Subsequent Placement multiplied by a fraction, the numerator of which shall be
the number of shares of Common Stock purchased by such Purchaser under this Agreement divided by
the total number of shares of Common Stock issued and outstanding immediately prior to such
Subsequent Placement.




          (b) To accept an Offer, in whole or in part, such Purchaser must deliver a written
notice to the Company prior to the end of the tenth (10th) Business Day after such
Purchaser’s receipt of the Offer Notice (the “Offer Period”), setting forth all or less than all of
the portion of such Purchaser’s Basic Amount that such Purchaser elects to purchase (the “Notice of
Acceptance”). Each Purchaser may also specify in the Notice of Acceptance any additional portion
of the Offered Securities attributable to the Basic Amounts of other Purchasers as such Purchaser
shall indicate it is willing to purchase or acquire should the other Purchasers subscribe for less
than their Basic Amounts (the “Undersubscription Amount”). If the Basic Amounts subscribed for by
all Purchasers are less than the total of all of the Basic Amounts, then each Purchaser who has set
forth an Undersubscription Amount in its Notice of Acceptance shall be entitled to purchase, in
addition to the Basic Amounts subscribed for, the Undersubscription Amount it has subscribed for;
provided, however, that if the Undersubscription Amounts subscribed for exceed the difference
between the total of all the Basic Amounts and the Basic Amounts subscribed for (the “Available
Undersubscription Amount”), each Purchaser who has subscribed for any Undersubscription Amount
shall be entitled to purchase only that portion of the Available Undersubscription Amount as the
Basic Amount of such Purchaser bears to the total Basic Amounts of all Purchasers that have
subscribed for the Undersubscription Amounts, subject to rounding by the Company to the extent its
deems reasonably necessary.




          (c) The Company shall have thirty (30) days from the expiration of the Offer Period
above to offer or sell all or any part of such Offered Securities as to which a Notice of
Acceptance has not been given by the Purchasers (the “Refused Securities”) in such Subsequent
Placement, but only upon terms and conditions (including, without limitation, the total amount of
the shares, financing, unit prices and interest rates) that are not more favorable to the acquiring
person or persons or less favorable to the Company than those set forth in the Offer Notice.




          (d) Notwithstanding the foregoing, the Company may, at its election, choose to
comply with this Section 4.15 after the closing of a Subsequent Placement by offering to
each Purchaser, within five (5) Business Days after the closing of such Subsequent Placement, its
Basic Amount of the Offered Securities and shall provide each Purchaser with the opportunity to
purchase such Offered Securities in accordance with the timing provisions set forth herein.




          (e) In the event the Company shall propose to sell less than all the Refused
Securities (any such sale to be in the manner and on the terms specified in Section 4.15(c)
above), then such Purchaser may, at its sole option and in its sole discretion, reduce the number
or amount of the Offered Securities specified in






29









 







its Notice of Acceptance to an amount that shall be not less than the number or amount of the
Offered Securities that such Purchaser elected to purchase pursuant to Section 4.15(b)
above multiplied by a fraction, (i) the numerator of which shall be the number or amount of Offered
Securities the Company actually proposes to issue, sell or exchange (including Offered Securities
to be issued or sold to Purchasers pursuant to this Section 4.15 prior to such reduction)
and (ii) the denominator of which shall be the original amount of the Offered Securities. In the
event that any Purchaser so elects to reduce the number or amount of Offered Securities specified
in its Notice of Acceptance, the Company may not issue, sell or exchange more than the reduced
number or amount of the Offered Securities unless and until such securities have again been offered
to the Purchasers in accordance with Section 4.15(a) above.




          (f) Upon the closing of the sale of all or less than all of the Refused Securities,
each Purchaser shall acquire from the Company, and the Company shall issue to each Purchaser, the
number or amount of Offered Securities specified in its Notices of Acceptance, as reduced pursuant
to Section 4.15(b)above if the Purchasers have so elected, upon the terms and conditions
specified in the Offer.




          (g) Any Offered Securities not acquired by the Purchasers or other persons in
accordance with Section 4.15(b) above may not be sold until they are again offered to the
Purchasers under the procedures specified in this Section 4.15.




          (h) The Company and each Purchaser agree that if any Purchaser elects to participate
in the Offer, neither the securities purchase agreement, placement agreement or any other
definitive agreement with respect to such Offer shall include any term or provision whereby such
Purchaser shall be required to agree to any restrictions on trading as to any securities of the
Company or be required to consent to any amendment to or termination of, or grant any waiver,
release or the like under or in connection with, any agreement previously entered into with the
Company or any instrument received from the Company.




          (i) Notwithstanding anything to the contrary in this Section 4.15 and unless
otherwise agreed to by such Purchaser, the Company shall either confirm in writing to such
Purchaser that the transaction with respect to the Subsequent Placement has been abandoned or shall
publicly disclose its intention to issue the Offered Securities, in either case in such a manner
such that such Purchaser will not be in possession of any material, non-public information, by the
second Business Day following the conclusion of the Offer Period. If by such second Business Day
following the conclusion of the Offer Period, no public disclosure regarding a transaction with
respect to the Offered Securities has been made, and no notice regarding the abandonment of such
transaction has been received by such Purchaser, such transaction shall be deemed to have been
abandoned and such Purchaser shall not be deemed to be in possession of any material, non-public
information with respect to the Company or any of its Subsidiaries. Should the Company decide to
pursue such transaction with respect to the Offered Securities, the Company shall provide such
Purchaser with another Offer Notice in accordance with, and subject to, the terms of this
Section 4.15 and such Purchaser will again have the right of participation set forth in
this Section 4.15.




          (j) The restrictions contained in this Section 4.15 shall not apply to the
issuance of any Common Stock or Common Stock Equivalents issued or issuable by the Company: (a)
under any Approved Stock Plan; (b) upon the exercise or exchange of or conversion of any Securities
issued hereunder or any Common Stock or Common Stock Equivalents outstanding as of the date hereof;
(c) pursuant to acquisitions or strategic transaction approved by a majority of the disinterested
directors, but shall not include a transaction to an entity whose primary business is investing in
securities; (d) pursuant to a registration statement filed under the Securities Act; or (e) at a
price per share of Common Stock equal to or exceeding six dollars ($6.00), as adjusted for any
subsequent stock splits, combinations, recapitalizations or the like. “Approved Stock Plan” means
any employee benefit plan approved by the Board of Directors and stockholders of the Company
pursuant to which the Company’s securities may be issued to any employee, officer, consultant or
director for services provided to the Company.







30









 








          (k) Any Purchaser may choose to waive its rights under this Section 4.15 at
any time upon notice to the Company in any manner provided for in Section 6.3 or by
electronic mail, which notice shall be effective immediately. Upon providing such notice,
Purchaser shall thereafter cease to have any rights under this Section 4.15, including that
the Company shall no longer be obligated to deliver, and Purchaser shall no longer have the right
to receive, an Offer Notice with respect to any Subsequent Placements. After the delivery of any
such notice by a Purchaser, and in the event of a Subsequent Placement, the Basic Amount to which
such Purchaser would have been entitled to purchase shall be deemed Refused Securities for purposes
of calculations under this Section 4.15. Any waiver of rights pursuant to this Section
4.15(h) shall not, however, prohibit Purchaser from purchasing Company securities in a
Subsequent Placement. Any notice of waiver of rights under this Section 4.15 shall be
effective only as to the Purchaser delivering such notice and shall not be effective as to any
other Purchaser.




ARTICLE V.

CONDITIONS PRECEDENT TO CLOSING



     5.1 Conditions Precedent to the Obligations of the Purchasers to Purchase Securities.
The obligation of each Purchaser to acquire Shares and Warrants at the Closing is subject to the
fulfillment to such Purchaser’s satisfaction, on or prior to the Closing Date, of each of the
following conditions, any of which may be waived by such Purchaser (as to itself only):



          (a) Representations and Warranties. The representations and warranties of
the Company contained herein shall be true and correct in all material respects (except for those
representations and warranties which are qualified as to materiality, in which case such
representations and warranties shall be true and correct in all respects) as of the date when made
and as of the Closing Date, as though made on and as of such date, except for such representations
and warranties that speak as of a specific date.




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




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




          (d) Consents. The Company shall have obtained in a timely fashion any and
all consents, permits, approvals, registrations and waivers necessary for consummation of the
purchase and sale of the Securities (including all Required Approvals except those required under
the IRA with regard to registration rights), all of which shall be and remain so long as necessary
in full force and effect.




          (e) Adverse Changes. Since the date of execution of this Agreement, no
event or series of events shall have occurred that has had or would reasonably be expected to have
a Material Adverse Effect.




          (f) Listing. The Nasdaq Global Market shall have approved the listing of
additional shares application for the Shares and Warrant Shares.




          (g) No Suspensions of Trading in Common Stock. The Common Stock shall not
have been suspended, as of the Closing Date, by the Commission or the Principal Trading Market from
trading on the Principal Trading Market nor shall suspension by the Commission or the Principal
Trading Market have been threatened, as of the Closing Date, either (A) in writing by the
Commission or the Principal Trading






31









 







Market or (B) by falling below the minimum listing maintenance requirements of the Principal
Trading Market.




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




          (i) Compliance Certificate. The Company shall have delivered to each
Purchaser a certificate, dated as of the Closing Date and signed by its Chief Executive Officer or
its Chief Financial Officer, dated as of the Closing Date, certifying to the fulfillment of the
conditions specified in Sections 5.1(a) and (b) in the form attached hereto as
Exhibit G.




          (j) Minimum Proceeds. The Company shall have received aggregate
Subscription Amounts from the Purchasers for at least Thirty Million Dollars ($30,000,000).




          (k) Termination. This Agreement shall not have been terminated as to such
Purchaser in accordance with Section 6.18 herein.




     5.2 Conditions Precedent to the Obligations of the Company to sell Securities. The
Company’s obligation to sell and issue the Shares and Warrants at the Closing to a Purchaser is
subject to the fulfillment to the satisfaction of the Company on or prior to the Closing Date of
the following conditions, any of which may be waived by the Company:



          (a) Representations and Warranties. The representations and warranties made
by such Purchaser in Section 3.2 hereof shall be true and correct in all material respects
(except for those representations and warranties which are qualified as to materiality, in which
case such representations and warranties shall be true and correct in all respects) as of the date
when made, and as of the Closing Date as though made on and as of such date, except for
representations and warranties that speak as of a specific date.




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




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




          (d) Purchasers Deliverables. Such Purchaser shall have delivered its
Purchaser Deliverables in accordance with Section 2.2(b).




          (e) Termination. This Agreement shall not have been terminated as to such
Purchaser in accordance with Section 6.18 herein.




ARTICLE VI.

MISCELLANEOUS



     6.1 Fees and Expenses. The Company and the Purchasers shall each pay the fees and
expenses of their respective advisers, counsel, accountants and other experts, if any, and all
other expenses incurred by such party in connection with the negotiation, preparation, execution,
delivery and performance of this
Agreement. The Company shall pay all Transfer Agent fees, stamp taxes and other taxes and
duties levied in connection with the sale and issuance of the Securities to the Purchasers.





32









 





     6.2 Entire Agreement. The Transaction Documents, together with the exhibits and
schedules thereto, contain the entire understanding of the parties with respect to the subject
matter hereof and supersede all prior agreements, understandings, discussions and representations,
oral or written, with respect to such matters, which the parties acknowledge have been merged into
such documents, exhibits and schedules. At or after the Closing, and without further
consideration, the Company and the Purchasers will execute and deliver to the other such further
documents as may be reasonably requested in order to give practical effect to the intention of the
parties under the Transaction Documents.



     6.3 Notices. Any and all notices or other communications or deliveries required or
permitted to be provided hereunder shall be in writing and shall be deemed given and effective on
the earliest of (a) the date of transmission, if such notice or communication is delivered via
facsimile (provided the sender receives a machine-generated confirmation of successful
transmission) at the facsimile number specified in this Section 6.3 prior to 5:00 P.M., New
York City time, on a Trading Day, (b) the next Trading Day after the date of transmission, if such
notice or communication is delivered via facsimile at the facsimile number specified in this
Section 6.3 on a day that is not a Trading Day or later than 5:00 P.M., New York City time,
on any Trading Day, (c) the Trading Day following the date of mailing, if sent by U.S. nationally
recognized overnight courier service with next day delivery specified, or (d) upon actual receipt
by the party to whom such notice is required to be given. The address for such notices and
communications shall be as follows:



	 	 	 	 	 

	 

	 	If to the Company:
	 	Anthera Pharmaceuticals

25801 Industrial Boulevard, Suite B

Hayward, California 94545

Attention: Christopher Lowe

Telephone No.: (510) 856-5600

Facsimile No.:(510) 856-5597

E-mail: clowe@anthera.com
	 
	 	 	 	 
	 

	 	With a copy to:
	 	Goodwin Procter LLP

Three Embarcadero Center, 24th Floor

San Francisco, California 94111

Telephone No.: (415) 733-6099

Facsimile No.: (415) 677-9041

Attention: Bradley Bugdanowitz

E-mail: bbugdano@goodwinprocter.com
	 
	 	 	 	 
	 

	 	If to a Purchaser:
	 	To the address set forth under such Purchaser’s name on the signature page
hereof;





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




     6.4 Amendments; Waivers; No Additional Consideration. No provision of this Agreement
may be waived, modified, supplemented or amended except in a written instrument signed, in the case
of an amendment, by (a) the Company and (b) (i) prior to the Closing, the Purchasers representing
at least seventy-five percent (75%) of the Subscription Amounts, and (ii) after the Closing, the
Purchasers representing at least seventy-five percent (75%) of the Securities then held by
Purchasers or, in the case of a waiver, by the party against whom enforcement of any such waiver is
sought; provided, that any amendment, waiver modification or supplement of this Agreement that
modifies the Subscription Amount of any Purchaser, the Purchase Price or Section 2.1(a) of this
Agreement or causes any such Purchaser to assume any additional
liability or obligation, may be effected only pursuant to a written instrument signed by the
Company and such Purchaser. No waiver of any default with respect to any provision, condition or
requirement of this Agreement shall be deemed to be a continuing waiver in the future or a waiver
of any subsequent default or a



33









 




waiver of any other provision, condition or requirement hereof, nor
shall any delay or omission of either party to exercise any right hereunder in any manner impair
the exercise of any such right. No consideration shall be offered or paid to any Purchaser to
amend or consent to a waiver or modification of any provision of any Transaction Document unless
the same consideration is also offered on the same terms and conditions to all Purchasers who then
hold Securities. Notwithstanding the foregoing, any provision of this
Agreement which may be waived,
modified, supplemented or amended without the written consent of each
Purchaser may only be so waived, modified, supplemented or amended in a manner
which applies to all Purchasers in the same fashion. The Company shall give prompt written notice
to each Purchaser of any waiver, modification, supplement or amendment hereof that was effected
without each Purchaser’s written consent.




     6.5 Construction. The headings herein are for convenience only, do not constitute a
part of this Agreement and shall not be deemed to limit or affect any of the provisions hereof.
The language used in this Agreement will be deemed to be the language chosen by the parties to
express their mutual intent, and no rules of strict construction will be applied against any party.
This Agreement shall be construed as if drafted jointly by the parties, and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any
provisions of this Agreement or any of the Transaction Documents.



     6.6 Successors and Assigns. The provisions of this Agreement shall inure to the
benefit of and be binding upon the parties and their successors and permitted assigns. This
Agreement, or any rights or obligations hereunder, may not be assigned by the Company without the
prior written consent of each Purchaser. Any Purchaser may assign its rights hereunder in whole or
in part to any Person to whom such Purchaser assigns or transfers any Securities in compliance with
the Transaction Documents and applicable law, provided such transferee shall agree in writing to be
bound, with respect to the transferred Securities, by the terms and conditions of this Agreement
that apply to the “Purchasers”.



     6.7 No Third-Party Beneficiaries. This Agreement is intended for the benefit of the
parties hereto and their respective successors and permitted assigns and is not for the benefit of,
nor may any provision hereof be enforced by, any other Person, except (i) the Placement Agent is an
intended third party beneficiary of Article III hereof and (ii) each Purchaser Party is an
intended third party beneficiary of Section 4.9.



     6.8 Governing Law. All questions concerning the construction, validity, enforcement
and interpretation of this Agreement shall be governed by and construed and enforced in accordance
with the internal laws of the State of New York, without regard to the principles of conflicts of
law thereof. Each party agrees that all Proceedings concerning the interpretations, enforcement
and defense of the transactions contemplated by this Agreement and any other Transaction Documents
(whether brought against a party hereto or its respective Affiliates, employees or agents) shall be
commenced exclusively in the New York Courts. Each party hereto hereby irrevocably submits to the
exclusive jurisdiction of the New York Courts for the adjudication of any dispute hereunder or in
connection herewith or with any transaction contemplated hereby or discussed herein (including with
respect to the enforcement of any of the Transaction Documents), and hereby irrevocably waives, and
agrees not to assert in any Proceeding, any claim that it is not personally subject to the
jurisdiction of any such New York Court, or that such Proceeding has been commenced in an improper
or inconvenient forum. Each party hereto hereby irrevocably waives personal service of process and
consents to process being served in any such Proceeding by mailing a copy thereof via registered or
certified mail or overnight delivery (with evidence of delivery) to such party at the address in
effect for notices to it under this Agreement and agrees that such service shall constitute good
and sufficient service of process and notice thereof. Nothing contained herein shall be deemed to
limit in any way any right to serve process in any manner permitted by law. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL
RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR
THE TRANSACTIONS CONTEMPLATED HEREBY.



34









 





     6.9 Survival. Subject to applicable statute of limitations, the representations,
warranties, agreements and covenants contained herein shall survive the Closing and the delivery of
the Securities.



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



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



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



     6.13 Replacement of Securities. If any certificate or instrument evidencing any
Securities is mutilated, lost, stolen or destroyed, the Company shall issue or cause to be issued
in exchange and substitution for and upon cancellation thereof, or in lieu of and substitution
therefor, a new certificate or instrument, but only upon receipt of evidence reasonably
satisfactory to the Company and the Transfer Agent of such loss, theft or destruction and the
execution by the holder thereof of a customary lost certificate affidavit of that fact and an
agreement to indemnify and hold harmless the Company and the Transfer Agent for any losses in
connection therewith or, if required by the Transfer Agent, a bond in such form and amount as is
required by the Transfer Agent. The applicants for a new certificate or instrument under such
circumstances shall also pay any reasonable third-party costs associated with the issuance of such
replacement Securities. If a replacement certificate or instrument evidencing any Securities is
requested due to a mutilation thereof, the Company may require delivery of such mutilated
certificate or instrument as a condition precedent to any issuance of a replacement.



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



     6.15 Payment Set Aside. To the extent that the Company makes a payment or payments to
any Purchaser pursuant to any Transaction Document or a Purchaser enforces or exercises its rights
thereunder, and such payment or payments or the proceeds of such enforcement or exercise or any
part thereof are subsequently invalidated, declared to be fraudulent or preferential, set aside,
recovered from, disgorged by or
are required to be refunded, repaid or otherwise restored to the Company, a trustee, receiver
or any other person under any law (including, without limitation, any bankruptcy law, state or
federal law, common law or equitable cause of action), then to the extent of any such restoration
the obligation or part thereof



35









 




originally intended to be satisfied shall be revived and continued
in full force and effect as if such payment had not been made or such enforcement or setoff had not
occurred.




     6.16 Adjustments in Share Numbers and Prices. In the event of any stock split,
subdivision, dividend or distribution payable in shares of Common Stock (or other securities or
rights convertible into, or entitling the holder thereof to receive directly or indirectly shares
of Common Stock), combination or other similar recapitalization or event occurring after the date
hereof and prior to the Closing, each reference in any Transaction Document to a number of shares
or a price per share shall be deemed to be amended to appropriately account for such event.



     6.17 Independent Nature of Purchasers’ Obligations and Rights. The obligations of
each Purchaser under any Transaction Document are several and not joint with the obligations of any
other Purchaser, and no Purchaser shall be responsible in any way for the performance of the
obligations of any other Purchaser under any Transaction Document. The decision of each Purchaser
to purchase Securities pursuant to the Transaction Documents has been made by such Purchaser
independently of any other Purchaser and independently of any information, materials, statements or
opinions as to the business, affairs, operations, assets, properties, liabilities, results of
operations, condition (financial or otherwise) or prospects of the Company or any Subsidiary which
may have been made or given by any other Purchaser or by any agent or employee of any other
Purchaser, and no Purchaser and any of its agents or employees shall have any liability to any
other Purchaser (or any other Person) relating to or arising from any such information, materials,
statement or opinions. Nothing contained herein or in any Transaction Document, and no action
taken by any Purchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
partnership, an association, a joint venture or any other kind of entity, or create a presumption
that the Purchasers are in any way acting in concert or as a group with respect to such obligations
or the transactions contemplated by the Transaction Documents. Each Purchaser acknowledges that no
other Purchaser has acted as agent for such Purchaser in connection with making its investment
hereunder and that no Purchaser will be acting as agent of such Purchaser in connection with
monitoring its investment in the Securities or enforcing its rights under the Transaction
Documents. Each Purchaser shall be entitled to independently protect and enforce its rights,
including without limitation the rights arising out of this Agreement or out of the other
Transaction Documents, and it shall not be necessary for any other Purchaser to be joined as an
additional party in any proceeding for such purpose. Each Purchaser has been represented by its
own separate legal counsel in its review and negotiation of the Transaction Documents. For reasons
of administrative convenience only, Purchasers and their respective counsels have chosen to
communicate with the Company through Latham & Watkins LLP, counsel to the Placement Agent. Each
Purchaser acknowledges that Latham & Watkins LLP has rendered legal advice to the Placement Agent
and not to such Purchaser in connection with the transactions contemplated hereby, and that each
such Purchaser has relied for such matters on the advice of its own respective counsel. The
Company has elected to provide all Purchasers with the same terms and Transaction Documents for the
convenience of the Company and not because it was required or requested to do so by any Purchaser.



     6.18 Termination. This Agreement may be terminated and the sale and purchase of the
Shares and the Warrants abandoned at any time prior to the Closing by either the Company or any
Purchaser (with respect to itself only) upon written notice to the other, if the Closing has not
been consummated on or prior to 5:00 P.M., New York City time, on the Outside Date; provided,
however, that the right to terminate this Agreement under this Section 6.18 shall not be
available to any Person whose failure to comply with its obligations under this Agreement has been
the cause of or resulted in the failure of the Closing to occur on or before such time. Nothing in
this Section 6.18 shall be deemed to release any party from any liability for any breach by
such party of the terms and provisions of this Agreement or the other Transaction Documents or to
impair the right of any party to compel specific performance by any other party of its
obligations under this Agreement or the other Transaction Documents. In the event of a termination
pursuant to this Section 6.18, the Company shall promptly notify all non-terminating
Purchasers. Upon a termination in accordance with



36









 




this Section 6.18, the Company and the
terminating Purchaser(s) shall not have any further obligation or liability (including arising from
such termination) to the other, and no Purchaser will have any liability to any other Purchaser
under the Transaction Documents as a result therefrom. The Company and any Purchaser(s) may extend
the term of this Agreement in accordance with the amendment provisions of Section 6.4
herein.




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



	 	 	 	 	 
	 	ANTHERA PHARMACEUTICALS, INC.

 	 
	 	By:  	 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



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	 	NAME OF PURCHASER:	 	 
	 

	 	 	 	 





	 	 	 	 	 
	 	 	 
	 	By:  	
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 



	 	 	 

	 

	 	Aggregate Purchase Price
(Subscription Amount): $                 
    
	 

	 	






	 	 	 	 	 

	 

	 	Number of Shares to be Acquired:	 	 
	 

	 	 	 	 





	 	 	 	 	 

	 

	 	Underlying Shares Subject to Warrant:	 	 
	 

	 	 	 	 
	 	 	(___% of the number of Shares to be acquired)






	 	 	 	 	 	 	 

	 

	 	Tax ID No.:	 	 	 	 
	 

	 	 	 	 

	 	 
	 
	 	 	 	 	 	 
	 	 	Address for Notice:	 	 






	 	 	 	 	 

	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 
	 
	 	 	 	 
	 

	 	 

	 	 






	 	 	 	 	 	 

	 

	 	Telephone No.:	 	 	 
	 

	 	 	 	 	 
	 

	 	Facsimile No.:	 	 	 
	 

	 	 	 	 	 
	 

	 	E-mail Address:	 	 	 
	 

	 	 	 	 	 
	 

	 	Attention:
	 		 
	 

	 	 	 	 	 






Delivery Instructions:

(if different than above)








	 	 	 	 

	c/o	 	 	 
	 	 	 	 
	Street: 	 	 	 
	 	 	 	 
	City/State/Zip: 	 	 	 
	 	 	 	 
	Attention:
	 		 
	 	 	 	 
	Telephone No.: