Exhibit 10.2








SECURITIES PURCHASE
AGREEMENT 



        SECURITIES
PURCHASE AGREEMENT (this “Agreement”), dated as of January 16, 2004, by
and between ENER1, INC., a Florida corporation (the “Company”), and each
of the entities whose names appear on the signature pages hereof. Such entities are each
referred to herein as an “Investor” and, collectively, as the
“Investors”. 



        The
Company wishes to sell to each Investor, and each Investor wishes to purchase, on the
terms and subject to the conditions set forth in this Agreement, a 5% Senior Secured
Convertible Debenture in the form attached hereto as Exhibit A (a
“Debenture” and, collectively, the “Debentures”) and a
Warrant in the form attached hereto as Exhibit B (a “Warrant” and,
collectively, the “Warrants”). The Warrants will entitle each Investor to
purchase a number of shares of Common Stock equal to the original principal amount of the
Debenture purchased by such Investor at the closing divided by the Conversion Price (as
defined below) in effect on the Closing Date (as defined below). The Warrants will have an
exercise price equal to $2.51. 



        The
shares of Common Stock into which the Debentures are convertible are referred to herein as
the “Conversion Shares” and the shares of Common Stock into which the
Warrants are exercisable are referred to herein as the “Warrant Shares”.
The Debentures, the Conversion Shares, the Warrants and the Warrant Shares are
collectively referred to herein as the “Securities”. 



        The
Company’s obligations under the Debentures, including without limitation its
obligation to make payments of principal thereof and interest thereon, are guaranteed by
the Company’s wholly-owned subsidiary, Ener1 Battery Company (the
“Mortgagor”), pursuant to a Subsidiary Guaranty Agreement in the form
attached hereto as Exhibit C (the “Subsidiary Guaranty”). The
obligations of the Mortgagor under the Subsidiary Guaranty are secured pursuant to the
terms of (i) a Mortgage, Security Agreement and Assignment of Leases and Rents in the form
attached hereto as Exhibit D (the “Mortgage”) and (ii) a Security
Agreement in the form attached hereto as Exhibit E (the “Security
Agreement”). The Company has agreed to effect the registration of the Conversion
Shares and the Warrant Shares under the Securities Act of 1933, as amended (the
“Securities Act”), pursuant to a Registration Rights Agreement in the
form attached hereto as Exhibit F (the “Registration Rights
Agreement”). The sale of the Debentures and the Warrants by the Company to the
Investors will be effected in reliance upon the exemption from securities registration
afforded by the provisions of Regulation D (“Regulation D”), as
promulgated by the Securities and Exchange Commission (the “Commission”)
under the Securities Act. 



        In
consideration of the mutual promises made herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the Company
and each Investor hereby agree as follows: 



     1.    
          PURCHASE AND SALE OF DEBENTURES AND WARRANTS. 



        1.1
Purchase of Debentures and Warrants. Upon the terms and subject to the satisfaction
or waiver of the conditions set forth herein, the Company agrees to sell and each Investor
agrees to purchase (i) a Debenture with a principal amount equal to the amount set forth
below such Investor’s name on the signature pages hereof and (ii) a Warrant. The
purchase price for the Debenture and Warrant being purchased by an Investor (the
“Purchase Price”) shall be equal to the principal amount of such
Debenture. The date on which the closing of the purchase and sale of the Debentures and
Warrants occurs (the “Closing”) is hereinafter referred to as the
“Closing Date”. The Closing will be deemed to occur when (A) this
Agreement and the other Transaction Documents (as defined below) have been executed and
delivered by the Company, the Guarantor Subsidiary and each Investor (which delivery may
be effected by facsimile transmission other than in respect of the Mortgage), (B) each of
the conditions to Closing described in Section 5 hereof has been satisfied or waived as
specified therein and (C) full payment of each Investor’s Purchase Price has been
made by such Investor to the Company by wire transfer of immediately available funds
against physical delivery by the Company of duly executed certificates representing the
Debenture and Warrant purchased by such Investor at the Closing. The Closing shall occur
at the offices of Gibson, Dunn & Crutcher LLP at 1050 Connecticut Avenue, Washington
DC 20036. 


        1.2
Certain Definitions. When used herein, the following terms shall have the respective meanings
indicated: 


        "Affiliate"
 means, as to any Person (the "subject Person"), any other Person (a) that
directly or indirectly through one or
more intermediaries controls or is controlled by, or is under direct or indirect common
control with, the subject Person, (b) that directly or indirectly beneficially owns
or holds ten percent (10%) or more of any class of voting equity of the subject Person, or
(c) ten percent (10%) or more of the voting equity of which is directly or indirectly
beneficially owned or held by the subject Person. For the purposes of this definition,
“control” when used with respect to any Person means the power to direct
the management and policies of such Person, directly or indirectly, whether through the
ownership of voting securities, through representation on such Person’s Board of
Directors or other management committee or group, by contract or otherwise. 



        “Business
Day” means any day other than a Saturday, a Sunday or a day on which the New York
Stock Exchange is closed or on which banks are authorized by law to close in New York, New
York. 



        “Closing”
and “Closing Date” have the respective meanings specified in Section 1.1
hereof. 



        “Closing
Bid Price” shall mean, for the Common Stock as of any date, the closing bid price
on such date for the Common Stock on the Principal Market as reported by Bloomberg
Financial Markets (“Bloomberg”), or if the Principal Market begins to
operate on an extended hours basis, and does not designate the closing bid price, then the
last bid price at 4:00 p.m. (eastern time), as reported by Bloomberg, or if the foregoing
do not apply, the last closing bid price of the Common Stock in the over-the-counter
market on the electronic bulletin board for such security as reported by Bloomberg, or, if
no closing bid price is reported for such security by Bloomberg, the last closing trade
price for such security as reported by Bloomberg, or, if no last closing trade price is
reported for such security by Bloomberg, the average of the bid prices of any market
makers for such security as reported in the “pink sheets” by Pink Sheets LLC
(formerly the National Quotation Bureau, Inc.). If the Closing Bid Price cannot be
calculated for the Common Stock on such date on any of the foregoing bases, then the
Company shall submit such calculation to an independent investment banking firm of
national reputation, and shall cause such investment banking firm to perform such
determination and notify the Company and each Investor of the results of determination no
later than two (2) Business Days from the time such calculation was submitted to it by the
Company. Such investment banking firm’s determination shall be deemed conclusive
absent manifest error. All such determinations shall be appropriately adjusted for any
stock dividend, stock split or other similar transaction during such period. 



        “Common
Stock” means the common stock, par value $0.01 per share, of the Company. 



        “Conversion Price”
has the meaning specified in the Debentures. 


        “Debt”
means, as to any Person at any time: (a) all indebtedness, liabilities and
obligations of such Person for
borrowed money; (b) all indebtedness, liabilities and obligations of such Person to pay
the deferred purchase price of Property or services, except trade accounts payable of such
Person arising in the ordinary course of business that are not past due by more than 90
days; (c) all capital lease obligations of such Person; (d) all Debt of others guaranteed
by such Person; (e) all indebtedness, liabilities and obligations secured by a Lien (other
than a Permitted Lien) existing on Property owned by such Person, whether or not the
indebtedness, liabilities or obligations secured thereby have been assumed by such Person
or are non-recourse to such Person; (f) all reimbursement obligations of such Person
(whether contingent or otherwise) in respect of letters of credit, bankers’
acceptances, surety or other bonds and similar instruments; and (g) all liabilities and
obligations of such Person to redeem or retire shares of capital stock of such Person
(other than the Company’s obligation to redeem the Securities under the circumstances
specified therein). Debt shall not include any liability for (i) federal, state, local or
other taxes imposed by a Governmental Authority, (ii) endorsements of negotiable
instruments for deposit or collection or similar transactions in the ordinary course of
business or (iii) any indebtedness that has been fully and finally defeased in accordance
with the terms of the documents governing such indebtedness. 



        “Disclosure
Documents” has the meaning specified in Section 3.4 hereof. 



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



        “Environmental Law”
means any federal, state, provincial, local or foreign law, statute, code or ordinance,
principle of common law, rule or regulation, as well as any Permit, order, decree,
judgment or injunction issued, promulgated, approved or entered thereunder, relating to
pollution or the protection, cleanup or restoration of the environment or natural
resources, or to the public health or safety, or otherwise governing the generation, use,
handling, collection, treatment, storage, transportation, recovery, recycling, discharge
or disposal of hazardous materials. 



        “ERISA”
means the Employee Retirement Income Security Act of 1974, as amended, and the regulations
and published interpretations thereunder. 



        “Event
of Default” has the meaning set forth in the Debentures. 



        “Exchange
Act” means the Securities Exchange Act of 1934, as amended (or any successor
act), and the rules and regulations thereunder (or respective successors thereto). 



        “Exercise
Price” shall have the meaning specified in the Warrants. 



        “GAAP”
means generally accepted accounting principles, applied on a consistent basis, as set
forth in (i) opinions of the Accounting Principles Board of the American Institute of
Certified Public Accountants, (ii) statements of the Financial Accounting Standards Board
(iii) interpretations of the Commission and the Staff of the Commission and each of their
respective successors and which are applicable in the circumstances as of the date in
question. Accounting principles are applied on a “consistent basis” when the
accounting principles applied in a current period are comparable in all material respects
to those accounting principles applied in a preceding period. 


        “Governmental Authority”
 means any nation or government, any state, provincial or political subdivision thereof and any
entity exercising executive, legislative, judicial, regulatory or administrative functions
of or pertaining to government, including without limitation any stock exchange,
securities market or self-regulatory organization. 



        “Governmental
Requirement” means any law, statute, code, ordinance, order, rule, regulation,
judgment, decree, injunction, franchise, license or other directive or requirement of any
federal, state, county, municipal, parish, provincial or other Governmental Authority or
any department, commission, board, court, agency or any other instrumentality of any of
them. 


        “Intellectual Property” means any U.S. or foreign patents, patent rights, patent
applications, trademarks, trade
names, service marks, brand names, logos and other trade designations (including
unregistered names and marks), trademark and service mark registrations and applications,
copyrights and copyright registrations and applications, inventions, invention
disclosures, protected formulae, formulations, processes, methods, trade secrets, computer
software, computer programs and source codes, manufacturing research and similar technical
information, engineering know-how, customer and supplier information, assembly and test
data drawings or royalty rights. 



        “Lien”
means, with respect to any Property, any mortgage or mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest, tax lien, financing statement, pledge,
charge, or other lien, charge, easement, encumbrance, preference, priority or other
security agreement or preferential arrangement of any kind or nature whatsoever on or with
respect to such Property (including, without limitation, any conditional sale or other
title retention agreement having substantially the same economic effect as any of the
foregoing). 


        “Market Price” means, as of a particular date, the lesser of (i) the average of the
Closing Bid Prices for the Common
Stock occurring during the ten (10) Trading Day period ending on (and including) the
Trading Day immediately preceding such date and (ii) the Closing Bid Price on the Trading
Day immediately preceding such date. 



        “Material
Adverse Effect” means an effect that has a material and adverse effect on (i) the
consolidated business, operations, properties, financial condition, prospects or results
of operations of the Company and its Subsidiaries taken as a whole or (ii) the ability of
the Company to perform its obligations under this Agreement or the other Transaction
Documents (as defined below). 



        “Material
Contracts” means, as to the Company, any agreement required pursuant to Item 601
of Regulation S-B or Item 601 of Regulation S-K, as applicable, promulgated under the
Securities Act to be filed as an exhibit to any report, schedule, registration statement
or definitive proxy statement filed or required to be filed by the Company with the
Commission under the Exchange Act or any rule or regulation promulgated thereunder, and
any and all amendments, modifications, supplements, renewals or restatements thereof. 



        “Mortgage”
and “Mortgagor” have the respective meanings specified in the preamble to
this Agreement. 



        “NASD”
means the National Association of Securities Dealers, Inc. 


        “Obligations” means any and all indebtedness, liabilities and obligations of the Company
to the Investor evidenced by and/or
arising pursuant to this Agreement or the Debentures, now existing or hereafter arising,
whether direct, indirect, related, unrelated, fixed, contingent, liquidated, unliquidated,
joint, several or joint and several, including, without limitation, the obligations of the
Company to repay principal of the Debentures, to pay interest on the Debentures
(including, without limitation, interest accruing after any bankruptcy, insolvency,
reorganization or other similar filing) and to pay all fees, indemnities, costs and
expenses (including attorneys’ fees) provided for in this Agreement or the
Debentures. 



        “Pension
Plan” means an employee benefit plan (as defined in ERISA) maintained by the
Company for employees of the Company or any of its Affiliates. 


        “Permitted
Liens” means the following: 



          		    (a)       
               encumbrances consisting of easements, rights-of-way, zoning restrictions or
               other restrictions on the use of real Property or imperfections to title that do
               not (individually or in the aggregate) materially impair the ability of the
               Company or any of its Subsidiaries to use such Property in its businesses, and
               none of which is violated in any material respect by existing or proposed
               structures or land use; 



               



          		    (b)       
               Liens for taxes, assessments or other governmental charges (including without
               limitation in connection with workers’ compensation and unemployment
               insurance) that are not delinquent or which are being contested in good faith by
               appropriate proceedings, which proceedings have the effect of preventing the
               forfeiture or sale of the Property subject to such Liens, and for which adequate
               reserves (as determined in accordance with GAAP) have been established; and 



               



          		    (c)       
               Liens of mechanics, materialmen, warehousemen, carriers, landlords or other
               similar statutory Liens securing obligations that are not yet due and are
               incurred in the ordinary course of business or which are being contested in good
               faith by appropriate proceedings, which proceedings have the effect of
               preventing the forfeiture or sale of the Property subject to such Liens, for
               which adequate reserves (as determined in accordance with GAAP) have been
               established and which have been bonded over and omitted from the Title Policy. 



               



        “Person”
means any individual, corporation, trust, association, company, partnership, joint
venture, limited liability company, joint stock company, Governmental Authority or other
entity. 



        “Property”
means property and/or assets of all kinds, whether real, personal or mixed, tangible or
intangible (including, without limitation, all rights relating thereto). 


        “Principal Market”
means the principal exchange or market on which the Common Stock is
listed or traded. 



        “Purchase
Price” has the meaning specified in Section 1.1 hereof. 



        “Real
Property” has the meaning specified in Section 3.21 hereof. 



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


        “Restricted Payment” means (a) during any period in which all of the Milestones (as
defined in the Debentures) are not
satisfied, any dividend or other distribution (whether in cash, Property or obligations),
direct or indirect, on account of (or the setting apart of money for a sinking or other
analogous fund for) any shares of any class of capital stock of the Company or any of its
Subsidiaries now or hereafter outstanding, except a dividend payable solely in shares of
that class of stock to all of the holders of that class; (b) any redemption, conversion,
exchange, retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of capital stock of the Company or
any of its Affiliates now or hereafter outstanding, except the Securities; (c) any
prepayment of principal of, premium, if any, or interest on, or any redemption,
conversion, exchange, purchase, retirement, sinking fund or defeasance of, any Debt
(whether upon acceleration of such Debt or otherwise) other than the Securities; and
(d) any loan, advance or payment to any officer, director or stockholder of the
Company or any of its Affiliates, exclusive of (i) reasonable compensation and
reimbursements paid to officers or directors in the ordinary course of business and (ii)
the scheduled repayment of principal and interest with respect to any loans made by any
such Affiliate to the Company and either (x) outstanding as of the date here of and set
forth on Schedule 3.5 hereto or (y) incurred after the date hereof and constituting
Subordinated Debt. Notwithstanding the foregoing, (A) the issuance of securities upon
exercise or conversion of the Company’s options, warrants or other convertible
securities outstanding as of the date hereof and set forth on Schedule 3.5 or the
grant of additional options or warrants or the issuance of additional securities, in each
such case under any Company stock option or restricted stock plan approved by the
independent members of the Board of Directors of the Company, and (B) the issuance of
equity securities to, or making payments under license, joint venture or similar
agreements with, persons with whom the Company has a joint venture, strategic alliance or
other commercial relationship in connection with the operation of the Company’s
business, and not in connection with a transaction the purpose of which is to raise equity
capital, shall not be deemed to be a Restricted Payment. 



        “SEC
Documents” has the meaning specified in Section 3.4 hereof. 



        “Securities”
has the meaning specified in the preamble to this Agreement. 



        “Security
Agreement” has the meaning specified in the preamble to this Agreement. 



        “Subordinated Debt”
means Debt of the Company which meets each of the following requirements: (a) such
Debt is wholly unsecured or the Liens securing such Debt are permitted pursuant to the
terms of this Agreement; and (b) such Debt is contractually subordinated, as to
payment and liquidation, to the payment in full of the Debentures and the Obligations on
terms, and pursuant to written agreements in form and substance, reasonably satisfactory
to Investors holding at least fifty percent (50%) of the aggregate principal amount of the
Debentures outstanding on the date such Debt is incurred (the “Subordinated Debt
Documents”). 



        “Subsidiary”
means, with respect to any Person, any corporation or other entity of which at least a
majority of the outstanding shares of stock or other ownership interests having by the
terms thereof ordinary voting power to elect a majority of the board of directors (or
Persons performing similar functions) of such corporation or entity (irrespective of
whether or not at the time, in the case of a corporation, stock of any other class or
classes of such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time directly or indirectly owned or controlled by
such Person or one or more of its Subsidiaries or by such Person and one or more of its
Subsidiaries. 



        “Subsidiary
Guaranty” has the meaning specified in the preamble to this Agreement. 



        “Title
Company” means Lawyers Title Insurance Corporation. 


        “Title  Policy”
means the final title  insurance  policy issued by the Title Company in the
form of, and containing the same
terms, endorsements and exceptions specified in, the pro forma Title Policy
attached hereto as Exhibit G. 



        “Trading
Day” means any day on which the Common Stock is purchased and sold on the Principal Market. 


        “Transaction Documents”
 means (i) this Agreement, (ii) the Debentures, (iii) the Warrants, (iv)
          the Mortgage, (v) the Subsidiary Guaranty, (v) the Security Agreement, (vi) the
          Registration Rights Agreement, and (vii) all other agreements, documents and
          other instruments executed and delivered by or on behalf of the Company, the
          Mortgagor or any of their respective officers at the Closing. 



        1.3
Other Definitional Provisions. All definitions contained in this Agreement are
equally applicable to the singular and plural forms of the terms defined. The words
“hereof”, “herein” and “hereunder” and words of similar
import referring to this Agreement refer to this Agreement as a whole and not to any
particular provision of this Agreement. 



     2.    
          REPRESENTATIONS AND WARRANTIES OF EACH INVESTOR. 



        Each
Investor hereby makes the following representations and warranties to the Company and
agrees with the Company that, as of the date of this Agreement and as of the Closing Date: 



        2.1
Authorization; Enforceability. Such Investor is duly and validly organized, validly
existing and in good standing under the laws of the jurisdiction of its incorporation or
organization as set forth below such Investor’s name on the signature page hereof
with the requisite corporate power and authority to purchase the Debentures and Warrants
and to execute and deliver this Agreement. This Agreement constitutes such Investor’s
valid and legally binding obligation, enforceable in accordance with its terms, subject to
(i) applicable bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium or
other similar laws of general application relating to or affecting the enforcement of
creditors’ rights generally and (ii) general principles of equity. 



        2.2
Accredited Investor. Such Investor is an accredited investor as that term is
defined in Rule 501 of Regulation D, was not organized for the specific purpose of
acquiring the Securities, and is acquiring the Debentures and Warrants solely for its own
account as a principal and not with a present view to the public resale or distribution of
all or any part thereof, except pursuant to sales that are exempt from the registration
requirements of the Securities Act and/or sales registered under the Securities Act;
provided, however that in making such representation, such Investor does not agree to hold
the Securities for any minimum or specific term and reserves the right to sell, transfer
or otherwise dispose of the Securities at any time in accordance with the provisions of
this Agreement and with Federal and state securities laws applicable to such sale,
transfer or disposition. Such Investor can bear the economic risk of a total loss of its
investment in the Debentures and the Warrants and has such knowledge and experience in
business and financial matters so as to enable it to understand the risks of and form an
investment decision with respect to its investment in the Securities. 



        2.3
Information. The Company has provided such Investor with, or such Investor has
otherwise had access to, all information regarding the business, operations and financial
condition of the Company that such Investor considers necessary or appropriate for
deciding whether to purchase the Securities, and has granted to such Investor the
opportunity to ask questions of and receive answers from representatives of the Company,
its officers, directors, employees and agents concerning the Company and materials
relating to the terms and conditions of the purchase and sale of the Debentures and
Warrants hereunder. Neither such information nor any other investigation conducted by such
Investor or any of its representatives shall modify, amend or otherwise affect such
Investor’s right to rely on the Company’s representations and warranties
contained in this Agreement. 



        2.4
Limitations on Disposition. Such Investor acknowledges that, except as provided in
the Registration Rights Agreement, the Securities have not been and are not being
registered under the Securities Act and may not be transferred or resold without
registration under the Securities Act or unless pursuant to an exemption therefrom. 



        2.5
Legend. Such Investor understands that the certificates representing the Securities
may bear at issuance a restrictive legend in substantially the following form: 



	 	
“The
securities represented by this certificate have not been registered under the Securities
Act of 1933, as amended (the “Securities Act”), or the securities laws of any
state, and may not be offered or sold unless a registration statement under the Securities
Act and applicable state securities laws shall have become effective with regard thereto,
or an exemption from registration under the Securities Act and applicable state securities
laws is available in connection with such offer or sale.” 






        Notwithstanding
the foregoing, it is agreed that, as long as (A) the resale or transfer (including without
limitation a pledge) of any of the Securities is registered pursuant to an effective
registration statement, (B) such Securities have been sold pursuant to Rule 144 under the
Securities Act or any successor provision (“Rule 144”), subject to
receipt by the Company of customary documentation reasonably acceptable to the Company in
connection therewith, or (C) such Securities are eligible for resale under Rule 144(k) or
any successor provision, such Securities shall be issued without any legend or other
restrictive language and, with respect to Securities upon which such legend is stamped,
the Company shall issue new certificates without such legend to the holder upon request. 



        2.6
Reliance on Exemptions. Such Investor understands that the Securities are being
offered and sold to it in reliance upon specific exemptions from the registration
requirements of United States federal and state securities laws and that the Company is
relying upon the truth and accuracy of the representations and warranties of such Investor
set forth in this Section 2 in order to determine the availability of such exemptions and
the eligibility of such Investor to acquire the Securities. 



        2.7
Non-Affiliate Status; Common Stock Ownership. Such Investor is not an Affiliate of
the Company or of any other Investor and is not acting in association or concert with any
other Investor in regard to its purchase of Debentures and Warrants or otherwise in regard
to the Company. Such Investor’s investment in Debentures and Warrants is not for the
purpose of acquiring, directly or indirectly, control of, and it has no intent to acquire
or exercise control of, the Company or to influence the decisions or policies of the
Company’s Board of Directors. 



        2.8
No Short Position in Company Securities. Neither such Investor nor any person
trading on its behalf or at its direction has established a short position the Common
Stock or any other securities of the Company as of the Trading Day immediately preceding
the Closing Date. 



        2.9
Fees. Such Investor is not obligated to pay any compensation or other fee, cost or
related expenditure to any underwriter, broker, agent or other representative in
connection with the transactions contemplated hereby. 



        2.10
No Conflicts. The execution and performance of this Agreement and the other
Transaction Documents do not conflict in any material respect with any agreement to which
such Investor is a party or is bound thereby, any court order or judgment addressed to
such Investor, or the constituent documents of such Investor. 



        2.11
No Governmental Review. Such Investor understands that no United States federal or
state agency or any other Governmental Authority 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.\ 



     3.    
          REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
          hereby makes the following representations and warranties to each Investor and
          agrees with each Investor that, as of the date of this Agreement and as of the
          Closing Date: 



        3.1
Organization, Good Standing and Qualification. Each of the Company and the
Mortgagor, Ener1 Technologies, Inc., EnerLook Solutions, Inc. and Ener1 Ukraine
(collectively, the “Company Subsidiaries”) is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its incorporation or
organization and has all requisite power and authority to carry on its business as now
conducted. Each of the Company and the Company Subsidiaries is duly qualified to transact
business and is in good standing in each jurisdiction in which it conducts business except
where the failure so to qualify has not had or would not reasonably be expected to have a
Material Adverse Effect. The Company Subsidiaries are the only Subsidiaries of the Company
that own or lease material assets or that conduct material business or operations, or that
have done so at any time during the twelve (12) month period immediately preceding the
date of this Agreement. 



        3.2
Authorization; Consents. The Company and each Company Subsidiary has the requisite
corporate power and authority to enter into and perform its obligations under the
Transaction Documents. The Company has the requisite corporate power and authority to
issue and sell the Debentures and the Warrants to the Investors in accordance with the
terms hereof and thereof, to issue the Conversion Shares upon conversion of the Debentures
and to issue the Warrant Shares upon exercise of the Warrants. All corporate action on the
part of the Company and each Company Subsidiary by its officers, directors and
stockholders necessary for the authorization, execution and delivery of, and the
performance by the Company and each Company Subsidiary of its obligations under, the
Transaction Documents has been taken, and no further consent or authorization of the
Company, any Company Subsidiary, their respective Board of Directors, stockholders, any
Governmental Authority or organization (other than such approval as may be required under
the Securities Act and applicable state securities laws in respect of the Registration
Rights Agreement), or any other person or entity is required (pursuant to any rule of the
National Association of Securities Dealers (“NASD”) or otherwise). The
Company’s and each applicable Company Subsidiary’s Board of Directors has
determined that the issuance and sale of the Securities, and the consummation of the
transactions contemplated hereby and by the other Transaction Documents (including without
limitation the issuance of Conversion Shares in accordance with the terms of the
Debentures and Warrant Shares in accordance with the terms of the Warrants), are in the
best interests of the Company and such Subsidiary, as applicable. 



        3.3
Enforcement. Each of the Transaction Documents constitutes the valid and legally
binding obligation of each of the Company and the Mortgagor, as applicable, enforceable
against it in accordance with its terms, subject to (i) applicable bankruptcy, insolvency,
fraudulent transfer, moratorium, reorganization or other similar laws of general
application relating to or affecting the enforcement of creditors’ rights generally
and (ii) general principles of equity. 



        3.4
Disclosure Documents; Agreements; Financial Statements; Other Information. The
Company is subject to the reporting requirements of the Exchange Act and has filed with
the Commission all reports, schedules, registration statements and definitive proxy
statements that the Company was required to file with the Commission on or after December
31, 2001 (collectively, the “SEC Documents”). The Company is not aware of
any event occurring or expected to occur on or prior to the Closing Date (other than the
transactions effected hereby) that would require the filing of, or with respect to which
the Company intends to file, a Form 8-K after the Closing. Each SEC Document, as of the
date of the filing thereof with the Commission, complied in all material respects with the
requirements of the Securities Act or Exchange Act, as applicable, and the rules and
regulations promulgated thereunder and, as of the date of such filing (or if amended or
superseded by a filing prior to the date of this Agreement, then on the date of such
filing), such SEC Document (including all exhibits and schedules thereto and documents
incorporated by reference therein) did not contain an untrue statement of material fact or
omit to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made, not
misleading. All documents required to be filed as exhibits to the SEC Documents have been
filed as required. Except as set forth in the SEC Documents filed at least one Business
Day prior to the date of this Agreement (the “Disclosure Documents”), the
Company has no liabilities, contingent or otherwise, other than liabilities incurred in
the ordinary course of business which, under GAAP, are not required to be reflected in the
financial statements included in the Disclosure Documents and which, individually or in
the aggregate, are not material to the consolidated business or financial condition of the
Company and its Subsidiaries taken as a whole. As of their respective dates, the financial
statements of the Company included in the SEC Documents complied as to form in all
material respects with applicable accounting requirements and the published rules and
regulations of the Commission with respect thereto. Such financial statements have been
prepared in accordance with GAAP consistently applied at the times and during the periods
involved (except (i) as may be otherwise indicated in such financial statements or the
notes thereto, or (ii) in the case of unaudited interim statements, to the extent they may
exclude footnotes or may be condensed or summary statements) and fairly present in all
material respects the financial position of the Company as of the dates thereof and the
results of its operations and cash flows for the periods then ended (subject, in the case
of unaudited statements, to normal year-end adjustments). 



        3.5
Capitalization; Debt Schedule. The capitalization of the Company as of the date
hereof, including its authorized capital stock, the number of shares issued and
outstanding, the number of shares issuable and reserved for issuance pursuant to the
Company’s stock option plans, the number of shares issuable and reserved for issuance
pursuant to securities (other than the Debentures and Warrants) exercisable for, or
convertible into or exchangeable for any shares of Common Stock and the number of shares
initially to be reserved for issuance upon conversion of the Debentures and exercise of
the Warrants is set forth on Schedule 3.5 hereto. All of such outstanding shares of
capital stock have been, or upon issuance will be, validly issued, fully paid and
non-assessable. Except as disclosed on Schedule 3.5 hereto, the Company owns all of
the capital stock of each Company Subsidiary, which capital stock is validly issued, fully
paid and non-assessable, and no shares of the capital stock of the Company or any of its
Subsidiaries are subject to preemptive rights or any other similar rights of the
stockholders of the Company or any such Subsidiary or any Liens created by or through the
Company or any such Subsidiary. Except as disclosed on Schedule 3.5, or as
contemplated herein, as of the date of this Agreement and as of the date of the closing,
there are no outstanding options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights convertible
into or exercisable or exchangeable for, any shares of capital stock of the Company or any
of its Subsidiaries, or arrangements by which the Company or any of its Subsidiaries is or
may become bound to issue additional shares of capital stock of the Company or any of its
Subsidiaries (whether pursuant to anti-dilution, “reset” or other similar
provisions). Schedule 3.5 identifies all Debt of the Company and it Subsidiaries
currently outstanding as of the date hereof. 



        3.6
Due Authorization; Valid Issuance. The Debentures are duly authorized and, when
issued, sold and delivered in accordance with the terms hereof, (i) will be duly and
validly issued, free and clear of any Liens imposed by or through the Company and (ii)
assuming the accuracy of each Investor’s representations in this Agreement, will be
issued, sold and delivered in compliance with all applicable Federal and state securities
laws. The Warrants are duly authorized and, when issued, sold and delivered in accordance
with the terms hereof, (i) will be duly and validly issued, fully paid and nonassessable,
free and clear of any Liens imposed by or through the Company and (ii) assuming the
accuracy of each Investor’s representations in this Agreement, will be issued, sold
and delivered in compliance with all applicable Federal and state securities laws. The
Conversion Shares are duly authorized and reserved for issuance and, when issued in
accordance with the terms of the Debentures, will be duly and validly issued, fully paid
and nonassessable, free and clear of any Liens imposed by or through the Company. The
Warrant Shares are duly authorized and reserved for issuance and, when issued in
accordance with the terms of the Warrants, will be duly and validly issued, fully paid and
nonassessable, free and clear of any Liens imposed by or through the Company. 



        3.7
No Conflict with Other Instruments. Neither the Company nor any of the Company
Subsidiaries is in violation of any provisions of its Certificate of Incorporation, Bylaws
or any other governing document or in default (and no event has occurred which, with
notice or lapse of time or both, would constitute a default) under any provision of any
instrument or contract to which it is a party or by which it or any of its Property is
bound, or in violation of any provision of any Governmental Requirement applicable to the
Company or any Company Subsidiary, except for any such violation or default that has not
had or would not reasonably be expected to have a Material Adverse Effect. The (i)
execution, delivery and performance of this Agreement and the other Transaction Documents
and (ii) consummation of the transactions contemplated hereby and thereby (including
without limitation, the issuance of the Debentures and the Warrants and the reservation
for issuance and issuance of the Conversion Shares and the Warrant Shares) will not result
in any violation referred to in the previous sentence or be in conflict with or
constitute, with or without the passage of time and giving of notice, either a default
under any such provision, instrument or contract (except with respect to contracts
relating to currently outstanding Debt of the Company that will be paid in full at or
simultaneously with the Closing) or an event which results in the creation of any Lien
upon any assets of the Company or of any of the Company Subsidiaries or the triggering of
any preemptive or anti-dilution rights (including without limitation pursuant to any
“reset” or similar provisions) or rights of first refusal or first offer, or any
other rights that would allow or permit the holders of the Company’s securities to
purchase shares of Common Stock or other securities of the Company (whether pursuant to a
shareholder rights plan provision or otherwise), on the part of holders of the
Company’s securities, other than such rights as are disclosed on Schedule 3.7
hereto. 


        3.8
Financial Condition; Taxes; Litigation.



        3.8.1
Except as disclosed on Schedule 3.8 hereto, the financial condition of the Company
and each Company Subsidiary is, in all material respects, as described in the Disclosure
Documents, except for changes in the ordinary course of business and normal year-end
adjustments that are not, in the aggregate, materially adverse to the consolidated
business or financial condition of the Company and its Subsidiaries taken as a whole.
Except as otherwise described in the Disclosure Documents or on Schedule 3.8
hereto, there has been no (i) material adverse change to the business, operations,
properties, financial condition, prospects or results of operations of the Company and its
Subsidiaries taken as a whole since the date of the Company’s most recent audited
financial statements contained in the Disclosure Documents or (ii) change by the Company
in its accounting principles, policies and methods except as required by changes in GAAP. 



        3.8.2
The Company and each of the Company Subsidiaries has prepared in good faith and duly and
timely filed all tax returns required to be filed by it (other than the timely filing of
any such return on which a loss was shown and as to which the Company paid all late
payments and penalties in connection therewith) and such returns are complete and accurate
in all material respects and the Company and each of the Company Subsidiaries has paid all
taxes required to have been paid by it, except for taxes which it reasonably disputes in
good faith or the failure of which to pay has not had or would not reasonably be expected
to have a Material Adverse Effect. Neither the Company nor any Company Subsidiary has any
liability with respect to taxes that accrued on or before September 30, 2003 in excess of
the amounts accrued with respect thereto that are reflected in the financial statements
included in the Disclosure Documents. 



        3.8.3
Neither the Company nor any of its Subsidiaries is the subject of any pending or, to the
Company’s knowledge, threatened inquiry, investigation or administrative or legal
proceeding by the Internal Revenue Service, the taxing authorities of any state or local
jurisdiction, the Commission, the NASD, any state securities commission or other
Governmental Authority. 



        3.8.4
Except as described in the Disclosure Documents or on Schedule 3.8 hereto, there is
no material claim, litigation or administrative proceeding pending, or, to the
Company’s knowledge, threatened or contemplated, against the Company or any of the
Company Subsidiaries, or against any officer, director or employee of the Company or any
such Subsidiary in connection with such person’s employment therewith. Neither the
Company nor any of the Company Subsidiaries is a party to or subject to the provisions of,
any order, writ, injunction, judgment or decree of any court or government agency or
instrumentality which has had or would reasonably be expected to have a Material Adverse
Effect. 



        3.9
Reporting Company; Form SB-2. The Company is eligible to register the Conversion
Shares and Warrant Shares for resale in a secondary offering by each Investor on a
registration statement on Form SB-2 under the Securities Act. To the Company’s
knowledge, there exist no facts or circumstances (including without limitation any
required approvals or waivers of any circumstances that may delay or prevent the obtaining
of accountant’s consents) that could reasonably be expected to prohibit or delay the
preparation and filing of a registration statement on Form SB-2 that will be available for
the resale of all Conversion Shares and Warrant Shares by each Investor. 



        3.10
Acknowledgement of Dilution. The Company acknowledges that the issuance of the
Conversion Shares upon conversion of the Debentures and the issuance of the Warrant Shares
upon exercise of the Warrants may result in dilution of the outstanding shares of Common
Stock, which dilution may be substantial under certain market conditions. The Company
further acknowledges its obligation to issue Conversion Shares upon conversion of the
Debentures in accordance with the terms of the Debentures, and to issue Warrant Shares
upon exercise of the Warrants in accordance with the terms of the Warrants, regardless of
the effect of any such dilution. 



        3.11
Intellectual Property. The Company and the Company Subsidiaries each owns,
possesses, licenses or can acquire or make use of, without undue expense, all Intellectual
Property that is necessary or appropriate for the operation of its businesses as presently
conducted and as presently proposed to be conducted, without any known conflict with the
rights of others, except where the failure to own or possess Intellectual Property would
not have a Material Adverse Effect. The consummation of the transactions contemplated by
this Agreement and the other Transaction Documents will not materially alter or impair,
individually or in the aggregate, any of such rights of the Company. To the Company’s
knowledge, except as described in the Disclosure Documents, (i) none of its or any of the
Company Subsidiary’s planned or current products or services infringes upon any
Intellectual Property of any other Person, and no claim or litigation is pending or, to
the knowledge of the Company, threatened against the Company or any Company Subsidiary
contesting its right to sell or otherwise use any product or material or service which has
had or would reasonably be expected to have a Material Adverse Effect, (ii) the use by the
Company or any Company Subsidiary of any material Intellectual Property does not infringe
the rights of any third party to such Intellectual Property and (iii) the rights of the
Company or any Company Subsidiary to Intellectual Property owned or used by it are valid
and enforceable and no registration relating thereto has lapsed, expired or terminated or
is the subject of any claim or proceeding that could result in any such lapse, expiration
or termination. The Company and the Company Subsidiaries each has complied in all material
respects with its obligations pursuant to any agreement relating to the Intellectual
Property rights that are the subject of licenses granted by third parties. 



        3.12
Registration Rights; Rights of Participation. Except as described on Schedule
3.12 hereto, (A) the Company has not granted or agreed to grant to any person or
entity any rights (including “piggy-back” registration rights) to have any
securities of the Company registered with the Commission or any other governmental
authority which has not been satisfied in full prior to the date hereof and (B) no person
or entity, including, but not limited to, current or former stockholders of the Company,
underwriters, brokers, agents or other third parties, has any right of first refusal,
preemptive right, right of participation, anti-dilutive right or any similar right to
participate in, or to receive securities or other assets of the Company solely as a result
of the transactions contemplated by this Agreement or the other Transaction Documents. 



        3.13
Solicitation; Other Issuances of Securities. Neither the Company nor any of its
Subsidiaries or Affiliates, nor any person acting on its or their behalf, (i) has engaged
in any form of general solicitation or general advertising (within the meaning of
Regulation D) in connection with the offer or sale of the Securities, or (ii) has,
directly or indirectly, made any offers or sales of any security or the right to purchase
any security, or solicited any offers to buy any security or any such right, under
circumstances that would require registration of the Securities under the Securities Act. 



        3.14
Fees. Except as described on Schedule 3.14 hereto, the Company is not
obligated to pay any brokers, finders or financial advisory fees or commissions to any
underwriter, broker, agent or other representative in connection with the transactions
contemplated hereby. The Company will indemnify and hold harmless such Investor from and
against any claim by any person or entity alleging that such Investor is obligated to pay
any such compensation, fee, cost or related expenditure in connection with the
transactions contemplated hereby. 



        3.15
Foreign Corrupt Practices. To the knowledge of the Company, neither the Company,
nor any of its Subsidiaries nor any director, officer, agent, employee or other person
acting on behalf of the Company or any Subsidiary, has (i) used any corporate funds for
any unlawful contribution, gift, entertainment or other unlawful expenses relating to
political activity, (ii) made any direct or indirect unlawful payment to any foreign or
domestic government official or employee, or (iii) violated any provision of the Foreign
Corrupt Practices Act of 1977, as amended, or made any bribe, rebate, payoff, influence
payment, kickback or other unlawful payment to any foreign or domestic government official
or employee. 



        3.16
Employees. The executive officers of the Company are Kevin P. Fitzgerald —
Chief Executive Officer, Randall Paulfus – Chief Financial Officer, Ronald N. Stewart
– Executive Vice President, General Counsel and Secretary and Dr. Elena Schembel
– Vice President (each, a “Key Employee”). The Company has no knowledge of
any fact or circumstance (including without limitation (i) the terms of any agreement to
which such person is a party or any litigation in which such person is or may become
involved and (ii) any illness or medical condition that could reasonably be expected to
result in the disability or incapacity of such person) that would limit or prevent any
such person from serving in such capacity on a full-time basis in the foreseeable future,
or of any intention on the part of any such person to limit or terminate his or her
employment with the Company. To the knowledge of the Company, no Key Employee has borrowed
money pursuant to a currently outstanding loan that is secured by Common Stock or any
right or option to receive Common Stock. There is no strike, labor dispute or union
organization activities pending or, to the knowledge of the Company, threatened between it
and its employees. None of the Company’s employees belong to any union or collective
bargaining unit. The Company has complied in all material respects with all applicable
federal and state equal opportunity and other laws related to employment. 



        3.17
Environment. Except as disclosed in the Disclosure Documents (i) the Company and
the Company Subsidiaries have no liabilities under any Environmental Law, nor, to the
Company’s knowledge, do any factors exist that are reasonably likely to give rise to
any such liability, affecting any of the properties owned or leased by the Company or any
of the Company Subsidiaries that, individually or in the aggregate, has had or would
reasonably be expected to have a Material Adverse Effect and (ii) neither the Company nor
any of the Company Subsidiaries has violated any Environmental Law applicable to it now or
previously in effect, other than such violations or infringements that, individually or in
the aggregate, have not had and would not reasonably be expected to have a Material
Adverse Effect. 



        3.18
ERISA. Except as described on Schedule 3.18, the Company does not maintain
or contribute to, or have any obligation under, any Pension Plan. The Company is in
compliance in all material respects with the presently applicable provisions of ERISA and
the United States Internal Revenue Code of 1986, as amended, with respect to each Pension
Plan except in any such case for any such matters that, individually or in the aggregate,
have not had, and would not reasonably be expected to have, a Material Adverse Effect. 



        3.19
Disclosure. No written statement, information, report, representation or warranty
made by the Company or the Mortgagor, as applicable, in any Transaction Document or
furnished to such Investor by or on behalf of the Company or the Mortgagor in connection
with (i) the Transaction Documents, (ii) any transaction contemplated hereby or thereby,
or (iii) such Investor’s due diligence investigation of the Company or the Mortgagor
contains any untrue statement of a material fact or omits to state any material fact
necessary to make the statements herein or therein, in light of the circumstances in which
made, not misleading. Except for the issuance of the Securities and the transactions
contemplated by this Agreement and the Transaction Documents, neither the Company, any
Affiliate of the Company, or any Person acting on behalf of the Company or at its
direction, has disclosed to such Investor any event, circumstance or fact that would
constitute material non-public information as of the date of this Agreement or the Closing
Date. The Company acknowledges and agrees that following the issuance of the press release
in accordance with Section 4.1 hereof, such Investor will not possess any material
non-public information concerning the Company or any Company Subsidiary, and that such
Investor is relying on the representations, acknowledgements and agreements made by the
Company in this Section 3.19 in making trading and other decisions concerning the
Company’s securities. 



        3.20
Insurance. The Company maintains insurance for itself and its Subsidiaries in such
amounts and covering such losses and risks as is reasonably sufficient and customary in
the businesses in which the Company and the Company Subsidiaries are engaged. No notice of
cancellation has been received for any of such policies and the Company is in compliance
with all of the terms and conditions thereof. The Company has no reason to believe that it
will not be able to renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be necessary to
continue its business without a significant increase in cost. Without limiting the
generality of the foregoing, the Company maintains Director’s and Officer’s
insurance in an amount not less than $2 million for each covered occurrence. 



        3.21
Property. Schedule 3.21 sets forth all real Property owned by the Company or
any of the Company Subsidiaries (the “Real Property”). The Company and the
Company Subsidiaries have good and marketable title in fee simple to all Real Property and
good and marketable title to all personal Property owned by them which is material to the
business of the Company and its Subsidiaries, in each case free and clear of all Liens,
except for Permitted Liens or as described on Schedule 3.21 hereto. Any Property
held under lease by the Company and 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 or proposed to be made of such Property by the Company and its
Subsidiaries. 



        3.22
Mortgage. Upon the filing of the Mortgage with the appropriate Governmental
Authority, the Mortgage will constitute and grant to such Investor a valid, perfected
first lien on the Real Property, not subject to any other Lien other than Permitted Liens,
or any claim by any third party that would adversely affect the security interest granted
thereby. 



        3.23
Regulatory Permits. The Company and the Company Subsidiaries possess all
certificates, authorizations and permits issued by the appropriate federal, state or
foreign regulatory authorities necessary to conduct their respective businesses except
where the failure to have any such authorization or permit would have a Material Adverse
Effect, and neither the Company nor any such Subsidiary has received any notice of
proceedings relating to the revocation or modification of any such certificate,
authorization or permit. 



        3.24
Exchange Act Registration; Listing. The Company’s Common Stock is registered
pursuant to Section 12(g) of the Exchange Act and the Company has taken no action designed
to, or which, to the knowledge of the Company, is likely to have the effect of,
terminating the registration of the Common Stock under the Exchange Act. 



        3.25
Investment Company Status. The Company is not, and immediately after receipt of
payment for the Debentures and the Warrants issued under this Agreement will not be, an
“investment company” or an entity “controlled” by an
“investment company” within the meaning of the Investment Company Act of
1940, as amended (the “Investment Company Act”), and shall conduct its
business in a manner so that it will not become subject to the Investment Company Act. 



        3.26
Transfer Taxes. No stock transfer or other taxes (other than income taxes) are
required to be paid in connection with the issuance and sale of any of the Securities,
other than such taxes for which the Company has established appropriate reserves and
intends to pay in full on or before the Closing. 



        3.27
Internal Controls and Procedures. The Company maintains internal accounting
controls, policies and procedures, and such books and records as are reasonably designed
to provide reasonable assurance that (i) all transactions to which the Company or any
Subsidiary is a party or by which its properties are bound are effected by a duly
authorized employee or agent of the Company, supervised by and acting within the scope of
the authority granted by the Company’s senior management; (ii) the recorded
accounting of the Company’s consolidated assets is compared with existing assets at
regular intervals; and (iii) all transactions to which the Company or any Company
Subsidiary is a party, or by which its properties are bound, are recorded (and such
records maintained) in accordance with all Government Requirements and as may be necessary
or appropriate to ensure that the financial statements of the Company are prepared in
accordance with GAAP. 



        3.28
Embargoed Person. To the knowledge of the Company, at all times while any Debenture
remains outstanding: (a) none of the funds or other assets of the Company shall
constitute property of, or shall be beneficially owned, directly or indirectly, by any
person subject to trade restrictions under United States law, including, but not limited
to, the International Emergency Economic Powers Act, 50 U.S.C. § 1701
et seq., The Trading with the Enemy Act, 50 U.S.C. App. 1
et seq., and any Executive Orders or regulations promulgated under any such
United States laws (each, an “Embargoed Person”), with the result that
the investments evidenced by the Securities are or would be in violation of law;
(b) no Embargoed Person shall have any interest of any nature whatsoever in the
Company with the result that the investments evidenced by the Securities are or would be
in violation of law; and (c) none of the funds of the Company shall be derived from
any unlawful activity with the result that the investments evidenced by the Securities are
or would be in violation of law. 



        3.29
No Other Agreements. The Company has not, directly or indirectly, entered into any
agreement with or granted any right to any Investor relating to the terms or conditions of
the transactions contemplated by the Transaction Documents, except as expressly set forth
in the Transaction Documents. 



     4.    
          COVENANTS OF THE COMPANY AND EACH INVESTOR. 


        4.1       The Company agrees with each Investor that it will, following the Closing:



         (a)       
          file a Form D with respect to the Securities issued at the Closing as required
          under Regulation D and to provide a copy thereof to such Investor promptly after
          such filing; 



         (b)       
          take such action as the Company reasonably determines upon the advice of counsel
          is necessary to qualify the Debentures and Warrants issued at the Closing for
          sale under applicable state or “blue-sky” laws or obtain an exemption
          therefrom, and shall provide evidence of any such action to such Investor at
          such Investor’s request; and 



         (c)       
          (i) on or prior to the Business Day immediately following the date on which this
          Agreement is executed and delivered by the Company and each Investor, issue a
          press release disclosing the material terms of this Agreement and the
          transactions contemplated by this Agreement and (ii) within two (2) Business
          Days following the Closing, file with the Commission a Current Report on Form
          8-K disclosing the material terms of this Agreement and the transactions
          contemplated hereby and including as exhibits this Agreement and the other
          Transaction Documents; provided, however, that Satellite Asset
          Management, L.P. and each Investor named therein shall have a reasonable
          opportunity to review and comment on any such press release or Form 8-K prior to
          the issuance or filing thereof. Thereafter, the Company shall timely file any
          filings and notices required by the Commission or applicable law with respect to
          the transactions contemplated hereby. 



        4.2
The Company agrees that it will, as long as any Investor or any Affiliate of such Investor
beneficially owns any Debentures: 



         (a)       
          maintain its corporate existence in good standing; 



         (b)       
          maintain, keep and preserve all of its Properties necessary in the proper
          conduct of its businesses in good repair, working order and condition (ordinary
          wear and tear excepted) and make all necessary repairs, renewals and
          replacements and improvements thereto, except where the failure to do so would
          not reasonably be expected to have, individually or in the aggregate, a Material
          Adverse Effect; 



         (c)       
          pay or discharge before becoming delinquent (a) all taxes, levies,
          assessments and governmental charges imposed on it or its income or profits or
          any of its Property and (b) all lawful claims for labor, material and
          supplies, which, if unpaid, might become a Lien (other than a Permitted Lien)
          upon any of its Property, except where the failure to do so would not reasonably
          be expected to have, individually or in the aggregate, a Material Adverse
          Effect; provided, however, that the Company shall not be required
          to pay or discharge any tax, levy, assessment or governmental charge, or claim
          for labor, material or supplies, whose amount, applicability or validity is
          being contested in good faith by appropriate proceedings being diligently
          pursued and for which adequate reserves have been established under GAAP; 



         (d)       
          comply with all Governmental Requirements applicable to the operation of its
          business, except for instances of noncompliance that would not reasonably be
          expected to have, individually or in the aggregate, a Material Adverse Effect; 



         (e)       
          comply with all agreements, documents and instruments binding on it or affecting
          its Properties or business, including, without limitation, all Material
          Contracts, except for instances of noncompliance that would not reasonably be
          expected to have, individually or in the aggregate, a Material Adverse Effect; 



         (f)       
          provide such Investor with copies of all materials sent to its stockholders to
          the extent not publicly available through the Commission’s EDGAR database,
          in each such case promptly after the filing thereof with the Commission; and 



         (g)       
          timely file with the Commission all reports required to be filed pursuant to the
          Exchange Act and refrain from terminating its status as an issuer required by
          the Exchange Act to file reports thereunder even if the Exchange Act or the
          rules or regulations thereunder would permit such termination. 



        4.3
Reservation of Common Stock. The Company shall, on the Closing Date, have
authorized and reserved for issuance, free from any preemptive rights, a number of shares
of Common Stock at least equal to one hundred and twenty five percent (125%) of the
maximum number of shares of Common Stock issuable upon (A) conversion of the outstanding
Debentures in full at the Conversion Price then in effect and (B) exercise of the
outstanding Warrants in full at the Exercise Price then in effect, in each such case
without regard to any limitation or restriction on such conversion or exercise that may be
set forth in the Debentures or the Warrants (the “Reserved Amount”). In
the event that, as a result of an adjustment to the Conversion Price of the Debentures or
the Exercise Price for the Warrants (pursuant to anti-dilution adjustments or otherwise),
the Reserved Amount is less than 105% of the number of shares of Common Stock then
issuable upon conversion of all of the Debentures and exercise of all of the Warrants then
outstanding (without regard to any limitation or restriction on such conversion or
exercise that may be set forth in the Debentures or the Warrants), the Company shall take
action (including without limitation seeking stockholder approval for the authorization or
reservation of additional shares of Common Stock) as soon as practicable (but in no event
later than the tenth (10th) business day or, in the event that stockholder
approval is required, the sixtieth (60th) day following such date) to increase
the Reserved Amount to no less than 125% of the number of shares of Common Stock into
which such outstanding Debentures are then convertible and such outstanding Warrants are
exercisable. The Company shall not reduce the number of shares reserved for issuance
hereunder without obtaining the written consent of the holders of two-thirds (2/3) of the
Registrable Securities into which all of the Debentures and Warrants then outstanding are
convertible or exercisable (without regard to any limitation on such conversion or
exercise). The initial Reserved Amount shall be allocated pro rata among the
Investors based on the principal amount of the Debentures issued to each Investor at the
Closing. Each increase in the Reserved Amount shall be allocated pro rata among the
Holders based on the amount of Registrable Securities into which all of the Debentures and
Warrants held by such Holder at the time of such increase are convertible or exercisable
(without regard to any limitation on such conversion or exercise). In the event that a
Holder shall sell or otherwise transfer any of such Holder’s Debentures, each
transferee shall be allocated a pro rata portion of such transferor’s Reserved
Amount. Any portion of the Reserved Amount which remains allocated to any person or entity
which does not hold any Debentures shall be reallocated to the remaining Holders pro
rata based on the amount of Registrable Securities into which all of the outstanding
Debentures and Warrants at the time of such increase are convertible or exercisable
(without regard to any limitation on such conversion or exercise). 



        4.4
Use of Proceeds. The Company shall use the proceeds from the sale of the Debentures
and Warrants as specified on Schedule 4.4 hereof. 



        4.5
Limitation on Debt, Liens. During the period beginning on the date of this
Agreement and ending on the Effective Date, the Company shall refrain, and shall ensure
that each of its Subsidiaries refrains, from incurring any Debt (including without
limitation by issuing any Debt securities) or increasing the amount of any existing line
of credit or other Debt facility beyond the amount outstanding on the date hereof. At all
times following the date of this Agreement and while at least $100,000 in aggregate
principal amount of the Debentures is outstanding, the Company shall refrain, and shall
ensure that each of its Subsidiaries refrains, from granting, establishing or maintaining
any Lien on any of its assets, including without limitation any pledge of securities owned
or held by it (including without limitation any securities issued by any such Subsidiary),
other than (i) Permitted Liens (including the imposition of any Lien after the Closing
Date, provided that, upon the imposition of any mechanic’s, tax or similar statutory
lien, the Company shall notify each Investor thereof and shall use commercially reasonable
efforts to remove such lien as soon as practicable (including without limitation
contesting such lien in good faith by appropriate proceedings)), (ii) Liens on assets
other than those covered by the Mortgage or the Security Agreement and which secure
Subordinated Debt, (iii) judgment Liens not giving rise to an Event of Default,
(iv) any interest or title of a lessor under any capitalized lease obligation; provided
that such Liens do not extend to any property or assets which is not leased property
subject to such capitalized lease obligation, (v) purchase money Liens to finance property
or assets of the Company or any Subsidiary of the Company acquired in the ordinary course
of business; provided, however, that (A) the related purchase money Debt
shall not exceed the cost of such property or assets (including the cost of design,
development, improvement, production, acquisition, construction, installation and
integration) and shall not be secured by any property or assets of the Company or any
Subsidiary of the Company other than the property and assets so acquired or constructed
(and any improvements) and (B) the Lien securing such Debt shall be created within ten
(10) days of such acquisition, construction or improvement, (vi) Liens upon specific items
of inventory or other goods and proceeds of any Person securing such Person’s
obligations in respect of bankers’ acceptances issued or created for the account of
such Person to facilitate the purchase, shipment or storage of such inventory or other
goods, and (vii) Liens encumbering deposits made to secure obligations arising from
statutory, regulatory, contractual, or warranty requirements of the Company or any of its
subsidiaries, including rights of offset and set-off. 



        4.6
Title Insurance. The Company shall obtain the Title Policy from the Title Company
at or prior to the Closing, at the Company’s sole cost and expense. 



        4.7
Restricted Payments. As long as at least $100,000 in aggregate principal amount of
the Debentures is outstanding, except as contemplated by Schedule 4.4 and except as
described on Schedule 4.7 hereof, the Company will not, nor will it permit any
Subsidiary of the Company to, make any Restricted Payments, except that: 



         (a)       
          the Company may make regularly scheduled payments of principal and interest
          accrued on any Subordinated Debt if and to the extent (but only if and to the
          extent) permitted by the express terms of the documents governing such
          Subordinated Debt; and 



         (b)       
          Subsidiaries of the Company may make Restricted Payments to the Company; 



provided, however, that
no Restricted Payments may be made pursuant to clause (a) or (b) above if an Event of
Default (or an event or circumstance that with the giving of notice or lapse of time would
constitute an Event of Default) exists at the time of such Restricted Payment or would
result therefrom. 



        4.8
Disposition of Property. As long as at least $100,000 in aggregate principal amount
of the Debentures is outstanding, the Company will not, nor will it permit any Subsidiary
of the Company to, sell, lease, assign, transfer or otherwise dispose of any of its
Property, except (i) dispositions of Property by the Company and its Subsidiaries in the
ordinary course of business or that are approved by the independent members of the Board
of Directors of the Company, as long as, in the event that any such Property is subject to
a Lien created by the Mortgage or the Security Agreement, the proceeds of such disposition
are treated in the manner described in such instrument, (ii) expenditures of money
(including, without limitation, money held in deposit accounts) made in the ordinary
course of business or for the purpose of making Restricted Payments expressly permitted in
accordance with this Agreement, (iii) licenses granted and development agreements entered
into with respect to its Intellectual Property to third parties, and (iv) dispositions of
the stock and/or assets of EnerLook Solutions, Inc. and EnerLook Technologies, Inc.
approved by the independent members of the Board of Directors of the Company. 



        4.9
Certain Transactions. As long as at least $100,000 in aggregate principal amount of
the Debentures is outstanding, and except as may be expressly permitted or required by the
Transaction Documents, the Company will not, nor will it permit any Subsidiary of the
Company to, create or otherwise cause or permit to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of the Company or any
Subsidiary of the Company to (a) pay dividends or make any other distribution to the
Company or any Subsidiary of the Company in respect of capital stock or with respect to
any other interest or participation in, or measured by, its profits, (b) pay any
indebtedness owed to the Company or any Subsidiary of the Company, (c) make any loan
or advance or capital contribution to the Company or any Subsidiary of the Company,
(d) sell, lease or transfer any of its Property to the Company or any Subsidiary of
the Company, or (e) grant a Lien on any of its Properties. 



        4.10
Modification of Certain Agreements. As long as at least $100,000 in aggregate
principal amount of the Debentures is outstanding, the Company will not, nor will it
permit any of the Company Subsidiaries to, consent to or implement any termination,
amendment, modification, supplement or waiver of (a) the certificate or articles of
incorporation, articles of organization, bylaws, regulations or other constituent
documents of the Company or any such Company Subsidiary or (b) any Material Contract
to which it is a party; provided, however, that any of such documents may be
amended or modified if and to the extent that (i) such change or modification is necessary
in order to carry out the intent of any Transaction Document, or (ii) such amendment or
modification is not materially adverse to the Company, any such Company Subsidiary or any
Investor. 



        4.11
Transactions with Affiliates. The Company agrees that any transaction or
arrangement between it or any of its Subsidiaries and any Affiliate or employee of the
Company shall be effected on an arms’ length basis and shall be approved by the
Company’s independent directors. 



        4.12
Use of Investor Name. Except as may be required by applicable law, the Company
shall not use, directly or indirectly, any Investor’s name or the name of any of its
affiliates in any advertisement, announcement, press release or other similar
communication unless it has received the prior written consent of any Investor for the
specific use contemplated or as otherwise required by applicable law or regulation. 



        4.13
Company’s Instructions to Transfer Agent. On or prior to the Closing Date, the
Company shall execute and deliver irrevocable written instructions to the transfer agent
for its Common Stock (the “Transfer Agent”), and provide each Investor
with a copy thereof, directing the Transfer Agent (i) to issue certificates representing
Conversion Shares upon conversion of the Debentures and receipt of a valid Conversion
Notice (as defined in the Debentures) from an Investor, in the amount specified in such
Conversion Notice, in the name of such Investor or its nominee, (ii) to issue certificates
representing Warrant Shares upon exercise of the Warrants and (iii) to deliver such
certificates to such Investor no later than the close of business on the third (3rd)
business day following the related Conversion Date (as defined in the Debentures) or
Exercise Date (as defined in the Warrant), as the case may be. Such certificates may bear
legends pursuant to applicable provisions of this Agreement or applicable law. As long as
the Company shall instruct the transfer agent that, in lieu of delivering physical
certificates representing shares of Common Stock to an Investor upon conversion of the
Debentures, or exercise of the Warrants, and as long as the Transfer Agent is a
participant in the Depository Trust Company (“DTC”) Fast Automated
Securities Transfer program, and such Investor has not informed the Company that it wishes
to receive physical certificates therefor, and no legend is required to appear on any
physical certificate if issued, the transfer agent may effect delivery of Conversion
Shares or Warrant Shares, as the case may be, by crediting the account of such Investor or
its nominee at DTC for the number of shares for which delivery is required hereunder
within the time frame specified above for delivery of certificates. The Company represents
to and agrees with each Investor that it will not give any instruction to the Transfer
Agent that will conflict with the foregoing instruction or otherwise restrict such
Investor’s right to convert the Debentures or to receive Conversion Shares in
accordance with the terms of the Debentures or to exercise the Warrant or to receive
Warrant Shares upon exercise of the Warrants. In the event that the Company’s
relationship with the Transfer Agent should be terminated for any reason, the Company
shall use its best efforts to cause the Transfer Agent to continue acting as transfer
agent pursuant to the terms hereof until such time that a successor transfer agent is
appointed by the Company and receives the instructions described above. 


        4.14
Right to Participate.



         (a)       
          Offer Notice. During the period beginning on the date hereof and ending
          on the one (1) year anniversary of the Closing Date, neither the Company nor any
          of its majority-owned Subsidiaries shall issue, sell or enter into any agreement
          to issue or sell any capital stock or securities convertible or exercisable
          into, or exchangeable for, capital stock of the Company or any such Subsidiary
          (a “Proposed Offering”), unless the Company shall first have
          delivered to each Investor written notice of such Proposed Offering describing
          all of the material terms and conditions thereof (including the dollar amount of
          securities intended to be issued and sold), and attaching a copy of any executed
          offer letter or terms sheet relating to such Proposed Offering (an
          “Offer Notice”). 



         (b)       
          Right to Participate. Each Investor shall have the right to purchase its
          pro rata share (determined by reference to the number of Shares purchased
          by such Investor under this Agreement as compared with the number of Shares
          purchased hereunder by all of the Investors) of twenty percent (20%) of the
          capital stock or securities convertible or exercisable into, or exchangeable
          for, capital stock of the Company or any such Subsidiary described in an Offer
          Notice (such percentage being referred to herein as the “Offered
          Securities”) on the same terms and conditions and in the same aggregate
          amount as are set forth therein, and may exercise such right by delivering
          written notice thereof to the Company within five (five) Trading Days following
          such Investor’s receipt of the Offer Notice. Each Investor may also
          purchase, on similar notice from the Company, its pro rata share of any
          of the Offered Securities not purchased by the other Investors. 



         (c)       
          Sale to Third Party. In the event that the Investors do not purchase all
          of the Offered Securities, the Company or its Subsidiary, as the case may be,
          may sell such securities to any Person, but only if such sale is made on the
          same terms and conditions as those set forth in such Offer Notice. If the
          Company or such Subsidiary has not sold all of such Offered Securities within
          thirty (30) days following the date on which it delivered an Offer Notice to
          each Investor, the Company or such Subsidiary shall not sell any of such
          securities unless it first offers to sell such securities to the Investors in
          accordance with the procedures set forth in this Section. 



         (d)       
          Exceptions. This Section 4.14 shall not apply to issuances of capital stock or
          securities convertible or exercisable into, or exchangeable for, capital stock
          of the Company (i) in connection with stock incentive plans approved by the
          independent members of the Company’s Board of Directors; (ii) upon the
          exercise or conversion of securities existing on the date hereof that are
          convertible into Common Stock and are described on Schedule 3.5 hereto; or (iii)
          issued to Persons with whom the Company is entering into a joint venture,
          strategic alliance or other commercial relationship in connection with the
          operation of the Company’s business and not in connection with a
          transaction the purpose of which is to raise equity capital. 


        4.15 Limitations on Disposition. Each Investor shall not sell, transfer, assign or dispose of any
Securities, unless:



         (a)       
          there is then in effect an effective registration statement under the Securities
          Act covering such proposed disposition and such disposition is made in
          accordance with such registration statement; or 



         (b)       
          such Investor has notified the Company in writing of any such disposition, has
          obtained the Company’s prior written consent (which consent will not be
          unreasonably withheld) and furnished the Company with an opinion of counsel,
          reasonably satisfactory to the Company, that such disposition will not require
          registration of such Securities under the Securities Act; provided,
          however, that no such consent or opinion of counsel will be required
          (A) if the sale, transfer or assignment is made to an Affiliate of such
          Investor, (B) if the sale, transfer or assignment is made pursuant to
          Rule 144 and such Investor provides the Company with evidence reasonably
          satisfactory to the Company and its legal counsel that the proposed transaction
          satisfies the requirements of Rule 144 or (C) in connection with a bona
          fide pledge or hypothecation of any Securities under a margin arrangement
          with a broker-dealer or other financial institution. 



        4.16
Disclosure of Information. The Company agrees that it will not at any time disclose
material non-public information to any Investor without first receiving such
Investor’s written consent to such disclosure. 



     5.    
          CONDITIONS TO CLOSING. 



        5.1
Conditions to Investors’ Obligations at the Closing. Each Investor’s
obligations to effect the Closing, including without limitation its obligation to purchase
a Debenture and Warrant at the Closing, are conditioned upon the fulfillment or waiver by
such Investor of each of the following events as of the Closing Date: 



	 	5.1.1 	
the representations and warranties of the Company set forth in this Agreement and in the
other Transaction Documents shall be true and correct in all material respects as of such
date as if made on such date (except that to the extent that any such representation or
warranty relates to a particular date, such representation or warranty shall be true and
correct in all respects as of that particular date); 






	 	5.1.2 	
the Company shall have complied with or performed in all material respects all of the
agreements, obligations and conditions set forth in this Agreement and in the other
Transaction Documents that are required to be complied with or performed by the Company on
or before the closing; 






	 	                  5.1.3  	the
Closing Date shall occur on a date that is not later than January 23, 2004; 






	 	5.1.4 	
the Company shall have delivered to such Investor a certificate, signed by the Chief
Executive Officer and Chief Financial Officer of the Company, certifying that the
conditions specified in this paragraph 5.1 have been fulfilled as of the Closing, it being
understood that such Investor may rely on such certificate as though it were a
representation and warranty of the Company made herein; 






	 	5.1.5 	
the Company shall have delivered to such Investor an opinion of counsel for the Company,
dated as of such date, in substantially the form set forth on Exhibit  5.1.5
hereto; 






	 	5.1.6 	
the Company shall have delivered duly executed certificates representing the Debenture and
the Warrant being purchased by such Investor; 






	 	                  5.1.7  	the
Company shall have executed and delivered the Registration Rights Agreement; 






	 	5.1.8 	
the Company shall have executed and delivered and filed the Mortgage to the Title Company
for filing, upon the Closing, with the appropriate Governmental Authority, and the Company
shall have provided such Investor with reasonable evidence thereof, and such Investor
shall have received an opinion of counsel reasonably satisfactory to such Investor with
respect to the validity and priority of the Mortgage; 






	 	                  5.1.9  	the
Title Company shall have irrevocably agreed to issue the final Title Policy; 






	 	5.1.10  	 there
shall have been no material adverse change in the Company’s consolidated business or
financial condition since the date of the Company’s most recent audited financial
statements contained in the Disclosure Documents, except as set forth in Schedule 3.8;  






	 	5.1.11 	 
the Company shall have authorized and reserved for issuance at least one hundred and
twenty five percent (125%) of the aggregate number of shares of Common Stock issuable upon
conversion of all of the Debentures and exercise of all of the Warrants to be issued at
the Closing (such number to be determined using the Conversion Price and Exercise Price in
effect on the Closing Date and without regard to any restriction on the ability of an
Investor to convert Debentures or exercise the Warrants as of such date); 






	 	5.1.12 	 
there shall be no injunction, restraining order or decree of any nature of any court or
Government Authority of competent jurisdiction that is in effect that restrains or
prohibits the consummation of the transactions contemplated hereby and by the Transaction
Documents; and 






	 	5.1.13 	 
the aggregate Purchase Price to be paid by the Investors for all of the Debentures and
Warrants to be issued hereunder shall be at least $20,000,000. 






        5.2
Conditions to Company’s Obligations at the Closing. The Company’s
obligations to effect the Closing are conditioned upon the fulfillment or waiver by the
Company of each of the following events as of the date of the closing: 



	 	5.2.1 	
the representations and warranties of each Investor shall be true and correct in all
material respects as of such date as if made on such date (except that to the extent that
any such representation or warranty relates to a particular date, such representation or
warranty shall be true and correct in all respects as of that particular date); 






	 	5.2.2 	
each Investor shall have complied with or performed all of the agreements, obligations and
conditions set forth in this Agreement that are required to be complied with or performed
by such Investor on or before the Closing; 






	 	5.2.3 	
there shall be no injunction, restraining order or decree of any nature of any court or
Government Authority of competent jurisdiction that is in effect that restrains or
prohibits the consummation of the transactions contemplated hereby and by the Transaction
Documents; 






	 	5.2.4 	
each Investor shall have executed each of the Transaction Documents to which it is a party
and delivered the same to the Company; and 






	 	5.2.5 	
each Investor shall have delivered to the Company the Purchase Price for the Debentures
and the Warrants being purchased by it at the Closing by wire transfer of immediately
available funds. 







6. MISCELLANEOUS. 



        6.1
Survival; Severability. The representations, warranties, covenants and indemnities
made by the parties herein shall survive the Closing notwithstanding any due diligence
investigation made by or on behalf of the party seeking to rely thereon. In the event that
any provision of this Agreement becomes or is declared by a court of competent
jurisdiction to be illegal, unenforceable or void, this Agreement shall continue in full
force and effect without said provision; provided that in such case the parties shall
negotiate in good faith to replace such provision with a new provision which is not
illegal, unenforceable or void, as long as such new provision does not materially change
the economic benefits of this Agreement to the parties. 



        6.2
Successors and Assigns. The terms and conditions of this Agreement shall inure to
the benefit of and be binding upon the respective successors and permitted assigns of the
parties. Nothing in this Agreement, express or implied, is intended to confer upon any
party other than the parties hereto or their respective successors and permitted assigns
any rights, remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided in this Agreement. The Investor may assign its rights and
obligations hereunder, in connection with any private sale or transfer of the Debentures
or Warrants in accordance with the terms hereof, as long as, as a condition precedent to
such transfer, the transferee executes an acknowledgment agreeing to be bound by the
applicable provisions of this Agreement, in which case the term “Investor” shall
be deemed to refer to such transferee as though such transferee were an original signatory
hereto. The Company may not assign its rights or obligations under this Agreement. 



        6.3
No Reliance. Each party acknowledges that (i) it has such knowledge in business and
financial matters as to be fully capable of evaluating this Agreement, the other
Transaction Documents and the transactions contemplated hereby and thereby, (ii) it is not
relying on any advice or representation of any other party in connection with entering
into this Agreement, the other Transaction Documents or such transactions (other than the
representations made in this Agreement or the other Transaction Documents), (iii) it has
not received from such party any assurance or guarantee as to the merits (whether legal,
regulatory, tax, financial or otherwise) of entering into this Agreement or the other
Transaction Documents or the performance of its obligations hereunder and thereunder, and
(iv) it has consulted with its own legal, regulatory, tax, business, investment, financial
and accounting advisors to the extent that it has deemed necessary, and has entered into
this Agreement and the other Transaction Documents based on its own independent judgment
and on the advice of its advisors as it has deemed necessary, and not on any view (whether
written or oral) expressed by such other party. 



        6.4
Independent Nature of Investors’ Obligations and Rights. The obligations of
each Investor hereunder are several and not joint with the obligations of the other
Investors hereunder, and no Investor shall be responsible in any way for the performance
of the obligations of any other Investor hereunder. Nothing contained herein or in any
other agreement or document delivered at the Closing, and no action taken by any Investor
pursuant hereto or thereto, shall be deemed to constitute the Investors as a partnership,
an association, a joint venture or any other kind of entity, or create a presumption that
the Investors are in any way acting in concert with respect to such obligations or the
transactions contemplated by this Agreement. Each Investor shall be entitled to 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 Investor to be joined as an additional party in any proceeding for such purpose. 



        6.5
Injunctive Relief. The Company acknowledges and agrees that a breach by it of its
obligations hereunder will cause irreparable harm to each Investor and that the remedy or
remedies at law for any such breach will be inadequate and agrees, in the event of any
such breach, in addition to all other available remedies, such Investor shall be entitled
to an injunction restraining any breach and requiring immediate and specific performance
of such obligations without the necessity of showing economic loss. 



        6.6
Governing Law; Jurisdiction. This Agreement shall be governed by and construed
under the laws of the State of New York applicable to contracts made and to be performed
entirely within the State of New York. Each party hereby irrevocably submits to the
non-exclusive jurisdiction of the state and federal courts sitting in the City of New
York, borough of Manhattan, for the adjudication of any dispute hereunder or in connection
herewith or with any transaction contemplated hereby or discussed herein, and hereby
irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim
that it is not personally subject to the jurisdiction of any such court, that such suit,
action or proceeding is brought in an inconvenient forum or that the venue of such suit,
action or proceeding is improper. Each party hereby irrevocably waives personal service of
process and consents to process being served in any such suit, action or proceeding by
mailing a copy thereof 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. 



        6.7
Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, and all of which together shall constitute one and the
same instrument. 



        6.8
Headings. The headings used in this Agreement are used for convenience only and are
not to be considered in construing or interpreting this Agreement. 



        6.9
Notices. Any notice, demand or request required or permitted to be given by the
Company or an Investor pursuant to the terms of this Agreement shall be in writing and
shall be deemed delivered (i) when delivered personally or by verifiable facsimile
transmission, unless such delivery is made on a day that is not a Business Day, in which
case such delivery will be deemed to be made on the next succeeding Business Day, (ii) on
the next Business Day after timely delivery to an overnight courier and (iii) on the
Business Day actually received if deposited in the U.S. mail (certified or registered
mail, return receipt requested, postage prepaid), addressed as follows: 




	 	If to the Corporation:



Ener1, Inc.

550 Cypress Creek Road

Suite 120

Fort Lauderdale, Florida 33309

Attn:    Kevin P. Fitzgerald

Tel:     954-202-4442

Fax:     954-202-2884



with a copy to:



Gibson, Dunn & Crutcher LLP

1050 Connecticut Avenue N.W.

Washington, DC 20036

Attn:    Stephen I. Glover

Tel:     202 955-8500

Fax:     202 467-0539






and if to any Investor, to such
address for such Investor as shall appear on the signature page hereof executed by such
Investor, or as shall be designated by such Investor in writing to the Company in
accordance with this Section 6.9. 



        6.10
Expenses. The Company and each Investor each shall pay all costs and expenses that
it incurs in connection with the negotiation, execution, delivery and performance of this
Agreement or the other Transaction Documents, provided, however, that that
the Company shall pay (i) in immediately available funds, at the Closing and promptly upon
receipt of any further invoices relating to same, for all reasonable, documented
out-of-pocket expenses (including without limitation legal fees and expenses) incurred by
Satellite Asset Management, L.P. in connection its due diligence investigation of the
Company and the negotiation, preparation, execution, delivery and performance of this
Agreement and the other Transaction Documents (regardless of whether the Closing occurs)
and (ii) all costs and expenses required to be paid by the Company or the Mortgagor under
any other Transaction Document, including without limitation all of the costs of obtaining
the Title Policy, recording the Mortgage and perfecting the security interests granted
under the Security Agreement (including, without limitation, the cost of all title
endorsements and any other cost of obtaining so-called “extended title coverage”
and all other title charges and all recording, filing and other fees and taxes charged by
the Title Company or any applicable Governmental Authority). At the Closing, the amount
due for such fees and expenses to Satellite Asset Management, L.P. may be netted out of
the Purchase Price payable by Satellite Asset Management, L.P. In the event the amount
paid by the Company for such fees and expenses is less than the actual reasonable fees and
expenses, the Company shall promptly pay such deficiency within thirty (30) days following
receipt of an invoice therefor. Notwithstanding anything herein to the contrary, if the
Closing does not occur, the Company obligation to pay the expenses of Satellite Asset
Management, L.P shall not exceed $50,000. 



        6.11
Entire Agreement; Amendments. This Agreement and the other Transaction Documents
constitute the entire agreement between the parties with regard to the subject matter
hereof and thereof, superseding all prior agreements or understandings, whether written or
oral, between or among the parties. Except as expressly provided herein, neither this
Agreement nor any term hereof may be amended except pursuant to a written instrument
executed by the Company and the holders of at least two-thirds (2/3) of the Registrable
Securities into which all of the Debentures and Warrants then outstanding are convertible
or exercisable (without regard to any limitation on such conversion or exercise), and no
provision hereof may be waived other than by a written instrument signed by the party
against whom enforcement of any such waiver is sought. 




[Signature Pages to
Follow] 








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




ENER1, INC. 




By:
__________________________
  Name:
  Title:


INVESTOR NAME:  ______________________________





By:
_________________________
  Name:
  Title:




ADDRESS: 












Tel:
___________________________




Fax: ___________________________

Email
Address:
_______________________




Principal Amount of
Debenture to be Purchased: _______________ 




Tax ID Number:
____________________