EX-10.1






Exhibit 10.1




EXECUTION COPY




FORM OF SUBSCRIPTION AGREEMENT




Cyclacel Pharmaceuticals, Inc.

200 Connell Drive

Suite 1500

Berkeley Heights, NJ 07922



Gentlemen:



The undersigned (the “Investor”) hereby confirms its agreement with Cyclacel Pharmaceuticals, Inc.,
a Delaware corporation (the “Company”) as follows:




     1. This Subscription Agreement, including the Terms and Conditions For Purchase of Units
attached hereto as Annex I (collectively, (this “Agreement”) is made as of the date set forth below
between the Company and the Investor.



     2. The Company has authorized the sale and issuance to certain investors of up to an aggregate
of 4,000,000 units (the “Units”), subject to adjustment by the Company’s Board of Directors, or a
committee thereof, each consisting of (i) one share (each a “Share,” collectively, the “Shares”) of
its common stock, par value $0.001 per share (the “Common Stock”),(ii) one warrant (the “Series I
Warrant”) to purchase 0.625 of one share of Common Stock, exercisable for a period of seven (7)
months, in substantially the form attached hereto as Exhibit B-1, and (iii) one warrant
(the “Series II Warrant”) to purchase 0.1838805 of one share of Common Stock and exercisable for a
period of five (5) years, in substantially the form attached hereto as Exhibit B-2, for a
purchase price of $0.85 per Unit (the “Purchase Price”). Units will not be issued or certificated.
The Series I Warrants, together with the Series II Warrants, are collectively referred to herein
as the “Warrants.” The Shares and Warrants are immediately separable and will be issued
separately. The shares of Common Stock issuable upon exercise of the Warrants are referred to
herein as the “Warrant Shares” and, together with the Units, the Shares and the Warrants, are
referred to herein as the “Securities”).



     3. The offering and sale of the Units (the “Offering”) are being made pursuant to (1) an
effective Registration Statement on Form S-3, No. 333-140034 (the “Registration Statement”) filed
by the Company with the Securities and Exchange Commission (the “Commission”) (including the
prospectus contained therein (the “Base Prospectus”), (2) if applicable, certain “free writing
prospectuses” (as that term is defined in Rule 405 under the Securities Act of 1933, as amended
(the “Securities Act”)), that have been or will be filed with the Commission and delivered to the
Investor on or prior to the date hereof (the “Issuer Free Writing Prospectus”), containing certain
supplemental information regarding the Units, the terms of the Offering and the Company and (3) a
Prospectus Supplement (the “Prospectus Supplement” and together with the Base Prospectus, the
“Prospectus”) containing certain supplemental information regarding the Securities and terms of the
Offering that has been or will be filed with the Commission and delivered to the Investor (or made
available to the Investor by the filing by the Company of an electronic version thereof with the
Commission).



 









 





     4. The Company and the Investor agree that the Investor will purchase from the Company and the
Company will issue and sell to the Investor the Units set forth below for the aggregate purchase
price set forth below. The Units shall be purchased pursuant to the Terms and Conditions for
Purchase of Units attached hereto as Annex I and incorporated herein by this reference as
if fully set forth herein. The Investor acknowledges that the Offering is not being underwritten
by the placement agent (the “Placement Agent”) named in the Prospectus Supplement and that there is
no minimum offering amount.



     5. The manner of settlement of the Shares included in the Units purchased by the Investor
shall be determined by such Investor as follows (check one):




	[___]	 	A. Delivery by crediting the account of the Investor’s prime broker (as specified by such
Investor on Exhibit A annexed hereto) with the Depository Trust Company (“DTC”) through its
Deposit/Withdrawal At Custodian (“DWAC”) system, whereby Investor’s prime broker shall
initiate a DWAC transaction on the Closing Date using its DTC participant identification
number, and released by American Stock Transfer & Trust Company, the Company’s transfer agent
(the “Transfer Agent”), at the Company’s direction. NO LATER THAN ONE (1) BUSINESS DAY AFTER
THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE INVESTOR SHALL:






	 	(I)	 	DIRECT THE BROKER-DEALER AT WHICH THE ACCOUNT OR ACCOUNTS TO BE
CREDITED WITH THE SHARES ARE MAINTAINED TO SET UP A DWAC INSTRUCTING THE
TRANSFER AGENT TO CREDIT SUCH ACCOUNT OR ACCOUNTS WITH THE SHARES, AND
	 
	 	(II)	 	REMIT BY WIRE TRANSFER THE AMOUNT OF FUNDS EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR TO THE
FOLLOWING ACCOUNT:




JPMorgan Chase Bank, N.A.

ABA:

Account Name:

Account Number:

Attention: n

Phone:




     —OR—




	[       ]	 	B. Delivery versus payment (“DVP”) through DTC (i.e., on the Closing
Date, the Company shall issue Shares registered in the Investor’s name and address as set
forth below and released by the Transfer Agent directly to the account(s) at Lazard
Capital Markets LLC (“LCM”) identified by the Investor; upon receipt of such Shares, LCM
shall promptly electronically deliver such Shares to the Investor, and simultaneously
therewith payment shall be made by LCM by wire transfer to the Company). NO LATER THAN
ONE (1) BUSINESS DAY




2









 












	 	 	AFTER THE EXECUTION OF THIS AGREEMENT BY THE INVESTOR AND THE COMPANY, THE
INVESTOR SHALL:






	 	(I)	 	NOTIFY LCM OF THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED
WITH THE SHARES BEING PURCHASED BY SUCH INVESTOR, AND
	 
	 	(II)	 	CONFIRM THAT THE ACCOUNT OR ACCOUNTS AT LCM TO BE CREDITED WITH
THE SHARES BEING PURCHASED BY THE INVESTOR HAVE A MINIMUM BALANCE EQUAL TO THE
AGGREGATE PURCHASE PRICE FOR THE UNITS BEING PURCHASED BY THE INVESTOR.




IT IS THE INVESTOR’S RESPONSIBILITY TO (A) MAKE THE NECESSARY WIRE TRANSFER OR CONFIRM THE
PROPER ACCOUNT BALANCE IN A TIMELY MANNER AND (B) ARRANGE FOR SETTLEMENT BY WAY OF DWAC OR DVP IN A
TIMELY MANNER. IF THE INVESTOR DOES NOT DELIVER THE AGGREGATE PURCHASE PRICE FOR THE UNITS OR DOES
NOT MAKE PROPER ARRANGEMENTS FOR SETTLEMENT IN A TIMELY MANNER, THE SHARES AND WARRANTS MAY NOT BE
DELIVERED AT CLOSING TO THE INVESTOR OR THE INVESTOR MAY BE EXCLUDED FROM THE CLOSING
ALTOGETHER.




     6. The executed Warrants shall be delivered in accordance with the terms thereof.



     7. The Investor represents that, except as set forth below, (a) it has had no position, office
or other material relationship within the past three years with the Company or persons known to it
to be affiliates of the Company, (b) it is not a member of the Financial Industry Regulatory
Authority, Inc. (“FINRA”) or an Associated Person (as such term is defined under the FINRA’s NASD
Membership and Registration Rules Section 1011) as of the Closing, and (c) neither the Investor nor
any group of Investors (as identified in a public filing made with the Commission) of which the
Investor is a part in connection with the Offering, acquired, or obtained the right to acquire, 20%
or more of the Common Stock (or securities convertible into or exercisable for Common Stock) or the
voting power of the Company on a post-transaction basis. Exceptions:



 





     (If no exceptions, write “none.” If left blank, response will be deemed to be “none.”)



     8. The Investor represents that it has received (or otherwise had made available to it by the
filing by the Company of an electronic version thereof with the Commission) the Base Prospectus,
dated February 12, 2007, which is a part of the Company’s Registration Statement, the documents
incorporated by reference therein and any free writing prospectus (collectively, the “Disclosure
Package”), prior to or in connection with the receipt of this Agreement. The Investor acknowledges
that, prior to the delivery of this Agreement to the Company, the Investor will receive certain
additional information regarding the Offering, including pricing information (the “Offering
Information”). Such information may be provided to the Investor by any means



3









 







permitted under the Securities Act, including the Prospectus Supplement, a free writing
prospectus and oral communications.



     9. No offer by the Investor to buy Units will be accepted and no part of the Purchase Price
will be delivered to the Company until the Investor has received the Offering Information and the
Company has accepted such offer by countersigning a copy of this Agreement, and any such offer may
be withdrawn or revoked, without obligation or commitment of any kind, at any time prior to the
Company (or LCM on behalf of the Company) sending (orally, in writing or by electronic mail) notice
of its acceptance of such offer. An indication of interest will involve no obligation or
commitment of any kind until the Investor has been delivered the Offering Information and this
Agreement is accepted and countersigned by or on behalf of the Company.



     10. The Company acknowledges that the only material, non-public information relating to the
Company or its subsidiaries that the Company, its employees or agents has provided to the Investor
in connection with the Offering prior to the date hereof is the existence of the Offering.



     11. For so long as any Warrants remain outstanding, the Company shall not, in any manner,
issue or sell any rights, warrants or options to subscribe for or purchase Common Stock that are
directly or indirectly convertible into or exchangeable for Common Stock at a price which resets as
a function of market price of the Common Stock at the time of such exercise, exchange or
conversion.



4









 




Number of Units:                                         



Purchase Price Per Unit:                     $0.85                    



Aggregate Purchase Price: $                                         



Number of Series I Warrant Shares (Equal to Number of Units multiplied by 0.625 and rounded to the
nearest whole number):                                         



Number of Series II Warrant Shares (Equal to Number of Units multiplied by 0.1838805 and rounded
down to the nearest whole number):                                         




     Please confirm that the foregoing correctly sets forth the agreement between us by signing in
the space provided below for that purpose.



	 	 	 	 	 
	 	Dated as of: July 23, 2009



 
INVESTOR

 	 
	 	By:  	 	 
	 	 	Print Name:  	 	 
	 	 	Title:  	 	 
	 	 	Address: 	 	 
	 	 	 	 
	 



Agreed and Accepted

this 23rd day of July, 2009:




	 	 	 	 	 
	CYCLACEL PHARMACEUTICALS, INC.

 	 	 
	By:  	 	 	 
	 	Title: 	 	 
	 	 	 	 



5









 






	 	 	 	 	 



ANNEX I




TERMS AND CONDITIONS FOR PURCHASE OF UNITS





     1. Authorization and Sale of the Units. Subject to the terms and conditions of this
Agreement, the Company has authorized the sale of the Units.



     2. Agreement to Sell and Purchase the Units; Placement Agent.



          2.1 At the Closing (as defined in Section 3.1), the Company will sell to the Investor,
and the Investor will purchase from the Company, upon the terms and conditions set forth herein,
the number of Units set forth on the last page of the Agreement to which these Terms and Conditions
for Purchase of Units are attached as Annex I (the “Signature Page”) for the aggregate
purchase price therefor set forth on the Signature Page.




          2.2 The Company proposes to enter into substantially this same form of Subscription Agreement
with certain other investors (the “Other Investors”) and expects to complete sales of Units to
them. The Investor and the Other Investors are hereinafter sometimes collectively referred to as
the “Investors,” and this Agreement and the Subscription Agreements executed by the Other Investors
are hereinafter sometimes collectively referred to as the “Agreements.”




          2.3 Investor acknowledges that the Company has agreed to pay Lazard Capital Markets LLC (the
“Placement Agent” or “LCM”) a fee (the “Placement Fee”) and certain expenses in respect of the sale
of Units to the Investor.




          2.4 The Company has entered into a Placement Agent Agreement, dated the date hereof, (the
“Placement Agreement”), with the Placement Agent that contains certain representations, warranties,
covenants and agreements of the Company that may be relied upon by the Investor, which shall be a
third party beneficiary thereof. The Company confirms that neither it nor any other Person acting
on its behalf has provided the Investor or their agents or counsel with any information that
constitutes or could reasonably be expected to constitute material, nonpublic information, except
as will be disclosed in the Prospectus and/or in the Company’s Form 8-K to be filed with the
Commission in connection with the Offering. The Company understands and confirms that the Investor
will rely on the foregoing representations in effecting transactions in securities of the Company.




     3. Closings and Delivery of the Units and Funds.



          3.1 Closing. The completion of the purchase and sale of the Units (the “Closing”)
shall occur at a place and time (the “Closing Date”) to be specified by the Company and LCM, and of
which the Investors will be notified in advance by LCM, in accordance with Rule 15c6-l promulgated
under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the Closing, (a)
the Company shall cause American Stock Transfer & Trust Company, the Company’s “Transfer Agent”, to
deliver to the Investor the number of Shares set forth on the Signature Page registered in the name
of the Investor or, if so indicated on the Investor Questionnaire attached hereto as Exhibit
A, in the name of a nominee designated by the Investor, (b) the Company shall cause to be
delivered to the Investor one Series I Warrant and one Series II Warrant for the number of Warrant
Shares set forth on the Signature Page and (c) the



6









 






aggregate purchase price for the Units being purchased by the Investor will be delivered by or
on behalf of the Investor to the Company.




          3.2 Conditions to the Obligations of the Parties.




          (a) Conditions to the Company’s Obligations. The Company’s obligation to issue and
sell the Units to the Investor shall be subject to: (i) the receipt by the Company of the purchase
price for the Units being purchased hereunder as set forth on the Signature Page and (ii) the
accuracy of the representations and warranties made by the Investor and the fulfillment of those
undertakings of the Investor to be fulfilled prior to the Closing Date.




          (b) Conditions to the Investor’s Obligations. The Investor’s obligation to purchase
the Units will be subject to the accuracy of the representations and warranties made by the Company
and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing Date,
including without limitation, those contained in the Placement Agreement, and to the condition that
the Placement Agent shall not have: (a) terminated the Placement Agreement pursuant to the terms
thereof or (b) determined that the conditions to the closing in the Placement Agreement have not
been satisfied. The Investor’s obligations are expressly not conditioned on the purchase by any or
all of the Other Investors of the Units that they have agreed to purchase from the Company. The
Investor understands and agrees that, in the event that LCM in its sole discretion determines that
the conditions to closing in the Placement Agreement have not been satisfied or if the Placement
Agreement may be terminated for any other reason permitted by such Placement Agreement, then LCM
may, but shall not be obligated to, terminate such Agreement, which shall have the effect of
terminating this Subscription Agreement pursuant to Section 14 below.




          3.3 Delivery of Funds.





          (a) DWAC Delivery. If the Investor elects to settle the Shares purchased by
such Investor through DTC’s Deposit/Withdrawal at Custodian (“DWAC”) delivery system, no
later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall remit by wire transfer the amount of funds equal to the
aggregate purchase price for the Units being purchased by the Investor to the following
account designated by the Company and LCM pursuant to the terms of that certain Escrow
Agreement (the “Escrow Agreement”), dated as of the date hereof, by and among the Company,
LCM and JPMorgan Chase Bank, N.A. (the “Escrow Agent”):


JPMorgan Chase Bank, N.A.

ABA #

Account Name:

Account Number:

Attention:

Phone:





          Such funds shall be held in escrow until the Closing and delivered by the Escrow Agent
on behalf of the Investors to the Company upon the satisfaction, in the sole judgment of
LCM, of the conditions set forth in Section 3.2(b) hereof. The Placement Agent
shall have no rights in or to any of the escrowed funds, unless the Placement Agent and the
Escrow Agent are notified in writing by the Company in connection with the



7









 






Closing that a portion of the escrowed funds shall be applied to the Placement Fee.
The Company agrees to indemnify and hold the Escrow Agent harmless from and against any and
all losses, costs, damages, expenses and claims (including, without limitation, court costs
and reasonable attorneys fees) (“Losses”) arising under this Section 3.3 or
otherwise with respect to the funds held in escrow pursuant hereto or arising under the
Escrow Agreement, unless it is finally determined that such Losses resulted directly from
the willful misconduct or gross negligence of the Escrow Agent. Anything in this Agreement
to the contrary notwithstanding, in no event shall the Escrow Agent be liable for any
special, indirect or consequential loss or damage of any kind whatsoever (including but not
limited to lost profits), even if the Escrow Agent has been advised of the likelihood of
such loss or damage and regardless of the form of action.




          (b) Delivery Versus Payment through The Depository Trust Company. If the
Investor elects to settle the Shares purchased by such Investor by delivery versus payment
through DTC, no later than one (1) business day after the execution of this Agreement by
the Investor and the Company, the Investor shall confirm that the account or accounts at
LCM to be credited with the Units being purchased by the Investor have a minimum balance
equal to the aggregate purchase price for the Units being purchased by the Investor.



          3.4 Delivery of Shares.




                    (a) DWAC Delivery. If the Investor elects to settle the Shares purchased by such
Investor through DTC’s DWAC delivery system, no later than one (1) business day after the
execution of this Agreement by the Investor and the Company, the Investor shall direct the
broker-dealer at which the account or accounts to be credited with the Shares being purchased by
such Investor are maintained, which broker/dealer shall be a DTC participant, to set up a DWAC
instructing the Transfer Agent to credit such account or accounts with the Shares. Such DWAC
instruction shall indicate the settlement date for the deposit of the Shares, which date shall be
provided to the Investor by LCM. Simultaneously with the delivery to the Company by the Escrow
Agent of the funds held in escrow pursuant to Section 3.3 above, the Company shall direct
the Transfer Agent to credit the Investor’s account or accounts with the Shares pursuant to the
information contained in the DWAC.



                    (b) Delivery Versus Payment through The Depository Trust Company. If the Investor
elects to settle the Shares purchased by such Investor by delivery versus payment through DTC,
no later than one (1) business day after the execution of this Agreement by the Investor and
the Company, the Investor shall notify LCM of the account or accounts at LCM to be credited
with the Shares being purchased by such Investor. On the Closing Date, the Company shall deliver
the Shares to the Investor through DTC directly to the account(s) at LCM identified by Investor and
simultaneously therewith payment shall be made by LCM by wire transfer to the Company.



8









 





     4. Representations, Warranties and Covenants of the Investor.



          The Investor a`cknowledges, represents and warrants to, and agrees with, the Company and the
Placement Agent that:





     4.1 The Investor (a) is knowledgeable, sophisticated and experienced in making, and is
qualified to make decisions with respect to, investments in securities presenting an investment
decision like that involved in the purchase of the Units, including investments in securities
issued by the Company and investments in comparable companies, (b) has answered all questions on
the Signature Page and the Investor Questionnaire and the answers thereto are true and correct
as of the date hereof and will be true and correct as of the Closing Date and (c) in connection
with its decision to purchase the number of Units set forth on the Signature Page, has received
and is relying only upon the Disclosure Package and the documents incorporated by reference
therein and the Offering Information.




     4.2 (a) No action has been or will be taken in any jurisdiction outside the United States
by the Company or the Placement Agent that would permit an offering of the Units, or possession
or distribution of offering materials in connection with the issue of the Securities in any
jurisdiction outside the United States where action for that purpose is required, (b) if the
Investor is outside the United States, it will comply with all applicable laws and regulations
in each foreign jurisdiction in which it purchases, offers, sells or delivers Securities or has
in its possession or distributes any offering material, in all cases at its own expense and (c)
the Placement Agent is not authorized to make and has not made any representation, disclosure or
use of any information in connection with the issue, placement, purchase and sale of the Units,
except as set forth or incorporated by reference in the Base Prospectus, the Prospectus
Supplement or any free writing prospectus.




     4.3 (a) The Investor has full right, power, authority and capacity to enter into this
Agreement and to consummate the transactions contemplated hereby and has taken all necessary
action to authorize the execution, delivery and performance of this Agreement, and (b) this
Agreement constitutes a valid and binding obligation of the Investor enforceable against the
Investor in accordance with its terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting creditors’ and
contracting parties’ rights generally and except as enforceability may be subject to general
principles of equity (regardless of whether such enforceability is considered in a proceeding in
equity or at law) and except as to the enforceability of any rights to indemnification or
contribution that may be violative of the public policy underlying any law, rule or regulation
(including any federal or state securities law, rule or regulation).




     4.4 The Investor understands that nothing in this Agreement, the Prospectus, the Disclosure
Package, the Offering Information or any other materials presented to the Investor in connection
with the purchase and sale of the Units constitutes legal, tax or investment advice. The
Investor has consulted such legal, tax and investment advisors and made such investigation as
it, in its sole discretion, has deemed necessary or appropriate in connection with its purchase
of Units. The Investor also understands that there is no established public trading market for
the Warrants being offered in the Offering, and that the Company does not expect such a market
to develop. In addition, the Company does not intend to apply for



9









 






listing of the Warrants on any securities exchange. The Investor understands that without
an active market, the liquidity of the Warrants will be limited.




     4.5 The Investor will maintain the confidentiality of all information acquired as a result
of the transactions contemplated hereby prior to the public disclosure of that information by
the Company in accordance with Section 13 of this Annex.




     4.6 Since the time at which the Placement Agent first contacted such Investor about the
Offering, the Investor has not disclosed any information regarding the Offering to any third
parties (other than its legal, accounting and other advisors) and has not engaged in any
purchases or sales of the securities of the Company (including, without limitation, any Short
Sales (as defined herein) involving the Company’s securities). The Investor covenants that it
will not engage in any purchases or sales of the securities of the Company (including Short
Sales) prior to the time that the transactions contemplated by this Agreement are publicly
disclosed. The Investor agrees that it will not use any of the Securities acquired pursuant to
this Agreement to cover any short position in the Common Stock if doing so would be in violation
of applicable securities laws. For purposes hereof, “Short Sales” include, without limitation,
all “short sales” as defined in Rule 200 promulgated under Regulation SHO under the Exchange
Act, whether or not against the box, and all types of direct and indirect stock pledges, forward
sales contracts, options, puts, calls, short sales, swaps, “put equivalent positions” (as
defined in Rule 16a-1(h) under the Exchange Act) and similar arrangements (including on a total
return basis), and sales and other transactions through non-U.S. broker dealers or foreign
regulated brokers.



     5. Survival of Representations, Warranties and Agreements; Third Party Beneficiary.
Notwithstanding any investigation made by any party to this Agreement or by the Placement Agent,
all covenants, agreements, representations and warranties made by the Company and the Investor
herein will survive the execution of this Agreement, the delivery to the Investor of the Shares and
Warrants being purchased and the payment therefor. The Placement Agent and Lazard Frères & Co.
shall be third party beneficiaries with respect to the representations, warranties and agreements
of the Investor in Section 4 hereof.



     6. Notices. All notices, requests, consents and other communications hereunder will be in
writing, will be mailed (a) if within the domestic United States by first-class registered or
certified airmail, or nationally recognized overnight express courier, postage prepaid, or by
facsimile or (b) if delivered from outside the United States, by International Federal Express or
facsimile, and will be deemed given (i) if delivered by first-class registered or certified mail
domestic, three business days after so mailed, (ii) if delivered by nationally recognized overnight
carrier, one business day after so mailed, (iii) if delivered by International Federal Express, two
business days after so mailed and (iv) if delivered by facsimile, upon electronic confirmation of
receipt and will be delivered and addressed as follows:




(a) if to the Company, to:




Cyclacel Pharmaceuticals, Inc.

200 Connell Drive, Suite 1500

Berkeley Heights, NJ 07922

Attention: Spiro Rombotis



10









 






Facsimile: (866) 271-3466




with a copy (which shall not constitute notice) to:




Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.

The Chrysler Center

666 Third Avenue

New York, New York 10017

Attention: Joel I. Papernik, Esq.

Facsimile: (212) 983-3115




(b) if to the Investor, at its address on the Signature Page hereto, or at such other
address or addresses as may have been furnished to the Company in writing.



     7. Changes. This Agreement may not be modified or amended except pursuant to an instrument in
writing signed by the Company and the Investor.



     8. Headings. The headings of the various sections of this Agreement have been inserted for
convenience of reference only and will not be deemed to be part of this Agreement.



     9. Severability. In case any provision contained in this Agreement should be invalid, illegal
or unenforceable in any respect, the validity, legality and enforceability of the remaining
provisions contained herein will not in any way be affected or impaired thereby.



     10. Governing Law. This Agreement will be governed by, and construed in accordance with, the
internal laws of the State of New York, without giving effect to the principles of conflicts of law
that would require the application of the laws of any other jurisdiction.



     11. Counterparts. This Agreement may be executed in two or more counterparts, each of which
will constitute an original, but all of which, when taken together, will constitute but one
instrument, and will become effective when one or more counterparts have been signed by each party
hereto and delivered to the other parties. The Company and the Investor acknowledge and agree that
the Company shall deliver its counterpart to the Investor along with the Prospectus Supplement (or
the filing by the Company of an electronic version thereof with the Commission).



     12. Confirmation of Sale. The Investor acknowledges and agrees that such Investor’s receipt
of the Company’s signed counterpart to this Agreement, together with the Prospectus Supplement (or
the filing by the Company of an electronic version thereof with the Commission), shall constitute
written confirmation of the Company’s sale of Units to such Investor.



     13. Press Release. The Company and the Investor agree that the Company shall, prior to the
opening of the financial markets in New York City on the business day immediately after the date
hereof (a) issue a press release announcing the Offering and disclosing all material information
regarding the Offering and (b) file a current report on Form 8-K with the Securities and Exchange
Commission including, but not limited to, a form of this Agreement and forms of Warrant as exhibits
thereto.



11









 





     14. Termination. In the event that the Placement Agreement is terminated by the Placement
Agent pursuant to the terms thereof, this Agreement shall terminate without any further action on
the part of the parties hereto.



12