agreement8-kv2






   LIFECORE BIOMEDICAL, INC.    SECURITIES PURCHASE AGREEMENT  This Securities Purchase Agreement (“Agreement”) is made as of November 25, 2022  (the “Effective Date”), by and among Lifecore Biomedical, Inc., a Delaware corporation  (the “Company”), and each of those persons and entities, severally and not jointly, listed as a  Purchaser on the Schedule of Purchasers attached as Exhibit A hereto (the “Schedule of  Purchasers”).  Such persons and entities are hereinafter collectively referred to herein as  “Purchasers” and each individually as a “Purchaser.”  AGREEMENT  In consideration of the mutual covenants contained in this Agreement, and for other good  and valuable consideration, the receipt of which is hereby acknowledged, the Company, and each  Purchaser (severally and not jointly) hereby agree as follows:  SECTION 1. AUTHORIZATION OF SALE OF THE SHARES.  The Company has authorized the sale and issuance of 627,746 shares of its Common Stock,  par value $0.001 per share (the “Common Stock”), on the terms and subject to the conditions set  forth in this Agreement.  The shares of Common Stock sold hereunder at the Closing (as defined  in Section 3) shall be referred to as the “Shares.”  SECTION 2. PURCHASE AND SALE OF THE SHARES.  2.1 Purchase and Sale.  At the Closing (as defined in Section 3), upon the terms and  subject to the conditions set forth herein, the Company will issue and sell to each Purchaser, and  each Purchaser will purchase from the Company, the number of Shares set forth opposite such  Purchaser’s name on the Schedule of Purchasers, at a price per Share equal to $7.97.  The aggregate  purchase price for the Shares purchased by each Purchaser (the “Purchase Amount”) is set forth  opposite such Purchaser’s name on the Schedule of Purchasers.  2.2 Separate Agreement.  Each Purchaser shall severally, and not jointly, be liable for  only the purchase of the Shares that appear on the Schedule of Purchasers that relate to such  Purchaser.  The Company’s agreement with each of the Purchasers, is a separate agreement, and  the sale of Shares to each of the Purchasers is a separate sale.  The obligations of each Purchaser  hereunder are expressly not conditioned on the purchase by any or all of the other Purchasers of the  Shares such other Purchasers have agreed to purchase.  SECTION 3. CLOSING AND DELIVERY.  3.1 Closing.  Subject to the terms and conditions set forth herein, the closing of the  purchase and sale of the Shares pursuant to this Agreement (the “Closing”) shall be held on  November 25, 2022 at the offices of Latham & Watkins LLP, 650 Town Center Drive, 20th Floor,  Costa Mesa, CA 92626, or on such other date or at such other location or remotely by facsimile  transmission or other electronic means as may be agreed to by the Company and the Purchasers  (the “Closing Date”).   





 






 2 3.2 Form of Payment.  Except as may otherwise be agreed to among the Company and  one or more of the Purchasers, on or prior to the business day immediately prior to the Closing  Date, each Purchaser shall deliver or cause to be delivered to the Company its Purchase Amount,  in United States dollars, via wire transfer and in immediately available funds pursuant to the wire  instructions delivered to such Purchaser by the Company on or prior to the Closing Date.   3.3 Issuance of the Shares at the Closing.  On the Closing Date, the Company shall  instruct its transfer agent to deliver to each Purchaser (i) evidence of a book entry position  evidencing the Shares purchased by such Purchaser hereunder, registered in the name of such  Purchaser, or in such nominee name(s) as designated by such Purchaser, representing the number  of Shares to be purchased by such Purchaser at such Closing as set forth in the Schedule of  Purchasers, within two (2) business days after the Closing and (ii) a copy of the records of the  Company’s transfer agent showing each Purchaser (or such nominee or custodian) as the owner of  the Shares on and as of the Closing Date. The name(s) in which the Shares are to be issued to each  Purchaser are set forth in the Purchaser Questionnaire in the form attached hereto as Appendix I  (the “Purchaser Questionnaire”), as completed by each Purchaser, which shall be provided to the  Company no later than the date hereof.    SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.  Except as set forth on the Schedule of Exceptions delivered to each Purchaser concurrently  with the execution of this Agreement (the “Schedule of Exceptions”), which disclosures qualify  these representations and warranties in their entirety, the Company hereby represents and warrants,  as of the date hereof and the Closing Date (except for the representations and warranties that speak  as of a specific date, which shall be made as of such date), as follows:  4.1 Organization and Standing.  The Company and each of its subsidiaries listed in  Exhibit 21.1 to the Company’s Form 10-K for the fiscal year ended May 29, 2022 (such entities,  the “subsidiaries”) are duly organized, validly existing as a corporation or other legal entity and in  good standing (or the foreign equivalent thereof) under the laws of their respective jurisdictions of  organization. The Company and each of its subsidiaries are duly licensed or qualified as a foreign  corporation or other legal entity for transaction of business and in good standing under the laws of  each other jurisdiction in which their respective ownership or lease of property or the conduct of  their respective businesses requires such license or qualification, and have all corporate power and  authority necessary to own or hold their respective properties and to conduct their respective  businesses in which they are engaged as described in the SEC Documents (as defined below),  except where the failure to be so qualified or in good standing or have such power or authority  would not have or would not reasonably be expected to have, individually or in the aggregate, a  material adverse effect on the business, properties, financial condition or results of operations of  the Company and its subsidiaries taken as a whole (a “Material Adverse Effect”).    4.2 Corporate Power; Authorization.  The Company has full corporate power and  authority to execute and deliver this Agreement and to issue, sell and deliver the Shares.  This  Agreement has been duly authorized, executed and delivered by the Company.  This Agreement  constitutes the legal, valid and binding obligation of the Company, enforceable against the  Company in accordance with its terms, except (i) as limited by applicable bankruptcy, insolvency,  reorganization, moratorium or similar laws relating to or affecting the enforcement of creditors’  





 






 3 rights generally, and (ii) as limited by equitable principles generally, including any specific  performance.   4.3 Subsidiaries.  Except as set forth in the SEC Documents, the Company owns,  directly or indirectly, all of the equity interests in each of its subsidiaries free and clear of any lien,  charge, security interest, encumbrance, right of first refusal or other restriction, and all the equity  interests of the subsidiaries are validly issued and are fully paid, nonassessable and free of  preemptive and similar rights.  4.4 Issuance and Delivery of the Shares.  The Shares have been duly authorized for  issuance and sale pursuant to this Agreement and, when issued and delivered by the Company  against payment therefor in compliance with the provisions of this Agreement, will be duly and  validly issued, fully paid and non-assessable and free and clear of any liens, of statutory and  contractual preemptive rights, resale rights, rights of first refusal, restrictions of any kind or nature  and similar rights (each, an “Encumbrance”), except for restrictions on transfer under this  Agreement, applicable state and federal securities laws and Encumbrances created by or imposed  by the Purchasers. Assuming the accuracy of the representations made by each Purchaser in Section  5, the offer and sale by the Company of the Shares is exempt from registration under the Securities  Act of 1933, as amended (the “Securities Act”).   4.5 SEC Documents.  The Company has filed all reports, schedules, forms, statements  and other documents required to be filed with the Securities and Exchange Commission (the  “Commission”) by the Company under Securities Act and the Securities Exchange Act of 1934, as  amended (the “Exchange Act”), including pursuant to Section 13(a) or 15(d) thereof, for the two  years preceding the date hereof (the “SEC Documents”). At the time of filing thereof dates (or, if  amended prior to the date of this Agreement, when amended), the SEC Documents complied as to  form in all material respects with the requirements of the Securities Act or the Exchange Act, as  applicable, and, as of their respective dates, did not contain any untrue statement of a material fact  or omit to state any material fact required to be stated therein or necessary in order to make the  statements made therein, in the light of the circumstances under which they were made, not  misleading.   4.6 Financial Statements.  The financial statements of the Company, together with the  related notes and any supporting schedules thereto, included or incorporated by reference in the  SEC Documents (the “Financial Statements”) present fairly, in all material respects, the  consolidated financial condition, results of operations and cash flows of the Company and each of  its subsidiaries as of and at the dates indicated and the results of their operations and cash flows for  the periods specified as of the dates and for the periods indicated. The Financial Statements and  any supporting schedules have been prepared in accordance with generally accepted accounting  principles as applied in the United States (“GAAP”) applied on a consistent basis throughout the  periods involved, except as may be expressly stated in the related notes thereto.  4.7 Auditors.  Ernst & Young LLP, who have audited certain financial statements of  the Company and delivered their report with respect to the audited financial statements and  schedules included in or incorporated by reference into the SEC Documents, is an independent  registered public accounting firm with respect to the Company as required by the Securities Act  and by the rules of the Public Company Accounting Oversight Board.    





 






 4 4.8 Capitalization.  The authorized capital stock of the Company consists of  50,000,000 shares of common stock and 2,000,000 shares of preferred stock.  As of the Effective  Date, there are no shares of preferred stock issued and outstanding and there are 29,668,839 shares  of Common Stock issued and outstanding, of which no shares are owned by the Company.  There  are no other shares of any other class or series of capital stock of the Company issued or  outstanding.  The Company has not issued any capital stock since its most recently filed periodic  report under the Exchange Act, other than pursuant the exercise of employee stock options under  the Company’s stock option or other employee benefit plans outstanding as of the date of the most  recently filed periodic report under the Exchange Act. The Company has no capital stock reserved  for issuance, except that, as of the Effective Date, there are 4,204,352 shares of Common Stock  reserved for issuance pursuant to the Company’s equity incentive plans, of which 2,900,085 shares  are issuable upon the exercise of stock options and vesting of restricted stock units outstanding, in  each case as of the date hereof. Except as described in the SEC Documents or as have otherwise  been waived (i) no person has the right, contractual or otherwise, to cause the Company or any of  its subsidiaries to issue or sell to it any shares of Common Stock or shares of any other capital stock  or other equity interests of the Company or any of its subsidiaries, (ii) no person has any preemptive  rights, resale rights, rights of first refusal or other rights to purchase any shares of Common Stock  or shares of any other capital stock of or other equity interests in the Company or any of its  subsidiaries, (iii) no person has the right to act as an underwriter or as a financial advisor to the  Company in connection with the offer and sale of the Shares; and (iv) no person has the right,  contractual or otherwise, to cause the Company to register under the Securities Act any shares of  Common Stock or shares of any other capital stock of or other equity interests in the Company.  There are no outstanding securities or instruments of the Company or any of its subsidiaries with  any provision that adjusts the exercise, conversion, exchange or reset price of such security or  instrument upon an issuance of securities by the Company or any of its subsidiaries. There are no  outstanding securities or instruments of the Company or any of its subsidiaries that contain any  redemption or similar provisions, and there are no contracts, commitments, understandings or  arrangements by which the Company or any of its subsidiaries is or may become bound to redeem  a security of the Company or any of its subsidiaries. The Company does not have any stock  appreciation rights or “phantom stock” plans or agreements or any similar plan or agreement. There  are no stockholders agreements, voting agreements or other similar agreements with respect to the  Company’s capital stock to which the Company is a party or, to the knowledge of the Company,  between or among any of the Company’s stockholders.  4.9 Litigation; Compliance with Law.  Except as disclosed in the SEC Documents,  there are no actions, suits, proceedings or investigations pending nor, to the Company’s knowledge,  threatened by or before any court, arbitrator, governmental or administrative agency or regulatory  authority (federal, state, county, local or foreign) (collectively, an “Action”), to which the Company  or any of its subsidiaries is a party or to which any property of the Company or any of its  subsidiaries is the subject that, individually or in the aggregate, if determined adversely, would  reasonably be expected to have a Material Adverse Effect. None of the Actions adversely affects  or challenges the legality, validity or enforceability of this Agreement or the Shares. To the  knowledge of the Company, there is not pending or contemplated, any investigation by the  Commission involving the Company or any current director or officer of the Company. The  Commission has not issued any stop order or other order suspending the effectiveness of any  registration statement filed by the Company under the Exchange Act or the Securities Act. The  Company and its subsidiaries are in compliance with all applicable law, except where such non- 





 






 5 compliance would not, individually or in the aggregate, reasonably be expected to have a Material  Adverse Effect.  Except as disclosed in the SEC Documents, the Company has not received any  written, or to its knowledge, other communication from a governmental entity that alleges that the  Company and/or its subsidiaries are not in compliance with or is in default or violation of any  applicable law, except where such non-compliance, default or violation would not, individually or  in the aggregate, reasonably be expected to have a Material Adverse Effect, and would not  adversely affect or challenge the legality, validity or enforceability of this Agreement or the Shares.  4.10 Consents. No approval, authorization, consent or order of or filing with any federal,  state, local or foreign governmental or regulatory commission, board, body, authority or agency, or  of or with any self-regulatory organization or other non-governmental regulatory authority  (including, without limitation, Nasdaq), or approval of the stockholders of the Company, is required  in connection with the consummation by the Company of the transactions contemplated by this  Agreement, other than (i) any necessary qualification under the securities or blue sky laws of the  various jurisdictions in which the Shares are being offered and sold, (ii) any listing applications and  related consents or any notices required by Nasdaq in the ordinary course of the offering of the  Shares and (iii) where failure to obtain such approval, authorization, or consent or to make such  filing, would not impair the ability of the Company to issue and sell the Shares or to consummate  the transactions contemplated by this Agreement.  4.11 No Default or Consents. The execution, delivery and performance of this  Agreement, the issuance and sale of the Shares and the consummation of the transactions  contemplated by this Agreement will not conflict with, result in any breach or violation of or  constitute a default under (nor constitute any event which, with notice, lapse of time or both, would  result in any breach or violation of, constitute a default under or give the holder of any indebtedness  (or a person acting on such holder’s behalf) the right to require the repurchase, redemption or  repayment of all or a part of such indebtedness under) (or result in the creation or imposition of a  lien, charge or encumbrance on any property or assets of the Company and/or any of its subsidiaries  pursuant to) (A) the charter or bylaws or other organizational or governing documents of the  Company and/or any of its subsidiaries, or (B) any indenture, mortgage, deed of trust, bank loan or  credit agreement or other evidence of indebtedness, or any license, lease, contract or other  agreement or instrument to which the Company and/or any of its subsidiaries is a party or by which  it or any of its properties may be bound or affected, or (C) any applicable federal, state, local or  foreign law, regulation or rule, or (D) any rule or regulation of any self-regulatory organization or  other non-governmental regulatory authority having jurisdiction over the Company or the Shares  (including, without limitation, the rules and regulations of Nasdaq), or (E) any decree, judgment or  order applicable to the Company and/or any of its subsidiaries and/or any of their respective  properties; except in the case of the foregoing clauses (B), (C), (D) and (E), for any such breaches,  violations, defaults or events that would not, individually or in the aggregate, reasonably be  expected to have a Material Adverse Effect.   4.12 No Material Adverse Change.  Subsequent to the respective dates as of which  information is given in the SEC Documents, in each case excluding any amendments or  supplements to the foregoing made after the execution of this Agreement, there has not been (i) any  material adverse change, or any development involving a prospective material adverse change, in  the business, properties, management, financial condition or results of operations of the Company,  (ii) any transaction which is material to the Company, (iii) any obligation or liability, direct or  





 






 6 contingent (including any off-balance sheet obligations), incurred by the Company, which is  material to the Company, (iv) any change in the capital stock or outstanding indebtedness of the  Company or (v) any dividend or distribution of any kind declared, paid or made on the capital stock  of the Company.  4.13 Intellectual Property.  The Company and its subsidiaries own, or have obtained  valid and enforceable licenses for, or other rights to use, the inventions, patent applications, patents,  trademarks (both registered and unregistered), tradenames, service names, copyrights, trade secrets  and other proprietary information described in the SEC Documents as being owned or licensed by  them or which are necessary for the conduct of its business as currently conducted or as currently  proposed to be conducted, except where the failure to own, license or have such rights would not,  individually or in the aggregate, have a Material Adverse Effect (collectively, “Intellectual  Property”). To the Company’s best knowledge, (i) there is no existing infringement by third parties  of any Intellectual Property; (ii) there is no pending or, to the Company’s knowledge, threatened  action, suit, proceeding or claim by others challenging the Company’s rights in or to any Intellectual  Property; (iii) there is no pending or, to the Company’s knowledge, threatened action, suit,  proceeding or claim by others challenging the validity, enforceability or scope of any Intellectual  Property; (iv) there is no pending or, to the Company’s knowledge, threatened action, suit,  proceeding or claim by others that the Company infringes or otherwise violates, or would, upon the  commercialization of any product or service described in the SEC Documents as under  development, infringe or violate, any patent, trademark, tradename, service name, copyright, trade  secret or other proprietary rights of others; (v) the Company has materially complied with the terms  of each agreement pursuant to which Intellectual Property has been licensed to the Company, and  all such agreements are in full force and effect; (vi) there is no patent or patent application that  contains claims that interfere with the issued or pending claims of any of the Intellectual Property  or that challenges the validity, enforceability or scope of any of the Intellectual Property; and (vii)  there is no prior art that may render any patent application within the Intellectual Property  unpatentable that has not been disclosed to the U.S. Patent and Trademark Office or of which the  Company is otherwise aware. The Company and its subsidiaries have taken reasonable security  measures to protect the secrecy, confidentiality and value of all of their Intellectual Property, except  where failure to do so would not, individually or in the aggregate, reasonably be expected to have  a Material Adverse Effect.  4.14 Compliance with Nasdaq Requirements; Depository Trust Company.  The  Company is in compliance with applicable rules of Nasdaq, including the continued listing  requirements thereunder. There are no proceedings pending or, to the Company’s knowledge,  threatened against the Company relating to the continued listing of the Common Stock on Nasdaq  and the Company has not, in the 12 months preceding the date hereof, received any notice of, nor  to the Company’s knowledge is there any reasonable basis for, the delisting of the Common Stock  from Nasdaq. The Shares are currently eligible for electronic transfer through the Depository Trust  Company or another established clearing corporation and the Company is current in payment of  the fees to the Depository Trust Company (or such other established clearing corporation) in  connection with such electronic transfer.  4.15 Properties and Assets.  The Company and its subsidiaries have good and  marketable title to all real property owned by them, and good and marketable title to all personal  property owned by them that are material to the businesses of the Company or such subsidiary, in  





 






 7 each case free and clear of all liens, claims, security interests or other encumbrances, except those  that (i) do not materially interfere with the use or proposed use of such property, or as would not  materially or adversely affect the value of such property or (ii) would not, individually or in the  aggregate, have a Material Adverse Effect. Any real or personal property leased by the Company  and any of its subsidiaries is held by them under valid, existing and enforceable leases, except those  that (A) do not materially interfere with the use made or proposed to be made of such property by  the Company or any of its subsidiaries or (B) would not be reasonably expected, individually or in  the aggregate, to have a Material Adverse Effect.  4.16 Taxes.  The Company and each of its subsidiaries have filed all federal and other  material tax returns which have been required to be filed and paid all taxes shown thereon through  the date hereof, to the extent that such taxes have become due and are not being contested in good  faith, except where the failure to so file or pay would not have a Material Adverse Effect, and no  tax deficiency has been determined adversely to the Company or any of its subsidiaries which has  had, or would have, individually or in the aggregate, a Material Adverse Effect. The Company has  no knowledge of any federal, state or other governmental tax deficiency, penalty or assessment  which has been asserted or threatened against it which would have a Material Adverse Effect.  4.17 Investment Company.  The Company is not and, after giving effect to the offering  and sale of the Shares, will not be, required to register as an “investment company” or an entity  “controlled” by an “investment company, as such terms are defined in the Investment Company  Act of 1940, as amended.   4.18 Insurance.  The Company and each of its subsidiaries maintains insurance by  insurers of recognized financial responsibility covering its properties, operations, personnel and  business against such losses and risks as are prudent and customary in the industry practice to  protect the Company and its business; all such insurance is fully in force on the date hereof. The  Company and each of its subsidiaries are in compliance with the terms of such policies in all  material respects, and neither the Company nor any of its subsidiaries has received notice from any  insurer or agent of such insurer that capital improvements or other expenditures are required or  necessary to be made in order to continue such insurance or that any insurer has an intent to  terminate such insurance. Neither the Company nor any of its subsidiaries has any reason to believe  that it will not be able to renew its existing insurance coverage as and when such coverage expires  or to obtain similar coverage from similar insurers as may be necessary to continue its business  without a significant increase in cost.  4.19 Governmental Permits, Etc.  (i) The Company has all necessary licenses,  authorizations, consents and approvals and has made all necessary filings required under any  applicable law, regulation or rule, and has obtained all necessary licenses, authorizations, consents  and approvals from other persons, in order to conduct its business as presently conducted, except  where the failure to have, make or obtain the same would not, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect; and (ii) the Company is not in violation  of, or in default under, or has received notice of any proceedings relating to the revocation or  modification of, any such license, authorization, consent or approval or any federal, state, local or  foreign law, regulation or rule or any decree, order or judgment applicable to the Company, except  where such violation, default, revocation or modification would not, individually or in the  aggregate, reasonably be expected to have a Material Adverse Effect.  





 






 8 4.20 Internal Control over Financial Reporting; Sarbanes-Oxley Act.  The Company  has established and maintains disclosure controls and procedures (as defined in Rules 13a-15(c)  and 15d-15(e) of the Exchange Act) for the Company and designed such disclosure controls and  procedures to ensure that material information relating to the Company and required to be disclosed  by the Company in the reports that it files or submits under the Exchange Act is made known to the  certifying officers by others within the Company. The Company maintains a system of internal  accounting controls sufficient to provide reasonable assurance that (i) transactions are executed in  accordance with management’s general or specific authorizations, (ii) transactions are recorded as  necessary to permit preparation of financial statements in conformity with GAAP and to maintain  asset and liability accountability, and (iii) access to assets or incurrence of liabilities is permitted  only in accordance with management’s general or specific authorization. The Company’s certifying  officers have evaluated the effectiveness of the Company’s controls and procedures as of the end  of the period covered by the most recently filed periodic report under the Exchange Act (such date,  the “Evaluation Date”). The Company presented in its most recently filed periodic report under the  Exchange Act the conclusions of the certifying officers about the effectiveness of the disclosure  controls and procedures based on their evaluations as of the Evaluation Date. Except as disclosed  in the SEC Documents, since the end of the Company’s most recent audited fiscal year, to the  Company’s knowledge, there have been no significant deficiencies or material weakness detected  in the Company’s internal control over financial reporting (whether or not remediated) and no  change in the Company’s internal control over financial reporting that has materially affected, or  is reasonably likely to materially affect, the Company’s internal control over financial reporting.  The Company is not aware of any change in its internal controls over financial reporting that has  occurred during its most recent fiscal quarter that has materially affected, or is reasonably likely to  materially affect, the Company’s internal control over financial reporting. The Company maintains  a standard system of accounting established and administered in accordance with GAAP and the  applicable requirements of the Exchange Act.  4.22 Labor.  No labor disturbance by or dispute with employees of the Company or any  of its subsidiaries exists or, to the knowledge of the Company, is imminent with respect to any of  the employees of the Company which would, individually or in the aggregate, reasonably be  expected to result in a Material Adverse Effect. Except as disclosed in the SEC Documents, none  of the Company’s or its subsidiaries’ employees is a member of a union that relates to such  employee’s relationship with the Company or such subsidiary, and neither the Company nor any  of its subsidiaries is a party to a collective bargaining agreement, and the Company and its  subsidiaries believe that their relationships with their employees are good. To the knowledge of the  Company, no executive officer of the Company or any subsidiary is, or is now expected to be, in  violation of any material term of any employment contract, confidentiality, disclosure or  proprietary information agreement or non-competition agreement, or any other contract or  agreement or any restrictive covenant in favor of any third party, and the continued employment of  each such executive officer does not subject the Company or any of its subsidiaries to any liability  with respect to any of the foregoing matters. The Company and its subsidiaries are in compliance  with all U.S. federal, state, local and foreign laws and regulations relating to employment and  employment practices, terms and conditions of employment and wages and hours, except where  the failure to be in compliance would not, individually or in the aggregate, reasonably be expected  to have a Material Adverse Effect.  





 






 9 4.23 ERISA.  To the knowledge of the Company, each material employee benefit plan,  within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as  amended (“ERISA”), that is maintained, administered or contributed to by the Company or any of  its affiliates for employees or former employees of the Company and any of its subsidiaries has  been maintained in material compliance with its terms and the requirements of any applicable  statutes, orders, rules and regulations, including ERISA and the Internal Revenue Code of 1986, as  amended (the “Code”); no prohibited transaction, within the meaning of Section 406 of ERISA or  Section 4975 of the Code, has occurred which would result in a material liability to the Company  with respect to any such plan excluding transactions effected pursuant to a statutory or  administrative exemption; and for each such plan that is subject to the funding rules of Section 412  of the Code or Section 302 of ERISA, no “accumulated funding deficiency” as defined in Section  412 of the Code has been incurred, whether or not waived, and the fair market value of the assets  of each such plan (excluding for these purposes accrued but unpaid contributions) exceeds the  present value of all benefits accrued under such plan determined using reasonable actuarial  assumptions; neither the Company nor any of its affiliates sponsors, maintains, contributes to,  participates in or has any obligations to, or any liability under, any multiemployer plan (as defined  in Section 4001(a)(3) of ERISA).  4.24 Environmental Laws.  Except as would not reasonably be expected, individually  or in the aggregate, to have a Material Adverse Effect, neither the Company nor any of its  subsidiaries is in violation of any statute, rule, regulation, decision or order of any governmental  agency or body or any court, domestic or foreign, relating to the use, disposal or release of  hazardous or toxic substances or relating to the protection or restoration of the environment or  human exposure to hazardous or toxic substances (collectively, “Environmental Laws”), has  released any hazardous substances regulated by Environmental Law on to any real property that it  owns or operates, or has received any written notice or claim that it is liable for any off-site disposal  or contamination pursuant to any Environmental Laws; and to the Company’s knowledge, there is  no pending or threatened investigation that could reasonably be expected to lead to such a claim.  The Company and its subsidiaries (i) have received all permits, licenses or other approvals required  of them under applicable Environmental Laws to conduct their respective businesses; and (ii) are  in compliance with all terms and conditions of any such permit, license or approval, except where  in each clause (i) and (ii) the failure to so comply would not, individually or in the aggregate,  reasonably be expected to have a Material Adverse Effect.  4.25 Foreign Corrupt Practices.  Except as disclosed in the SEC Documents, neither  the Company nor any director or officer of the Company, any of its subsidiaries, nor, to the  knowledge of the Company or any of its subsidiaries, any employee, agent or affiliate of the  Company or any of its subsidiaries, is aware of or has taken, any action, directly or indirectly, that  would result in a violation by such persons or entities of the Foreign Corrupt Practices Act of 1977,  as amended, and the rules and regulations thereunder (the “FCPA”), the U.K. Bribery Act 2010, or  other applicable anti-corruption laws (collectively, “Anti-Corruption Laws”); the Company will  not use the proceeds of the offering of the Shares contemplated hereby in violation of Anti- Corruption Laws; and the Company has instituted and maintains policies and procedures designed  to ensure continued compliance therewith.   4.26 Money Laundering Laws. The operations of the Company and its subsidiaries are  and have been conducted at all times in material compliance with applicable financial  





 






 10 recordkeeping and reporting requirements of the USA Patriot Act, the Bank Secrecy Act of 1970,  as amended, the money laundering statutes of all jurisdictions, the rules and regulations thereunder  and any related or similar rules, regulations or guidelines, issued, administered or enforced by any  governmental agency having jurisdiction over the Company and its subsidiaries (collectively, the  “Money Laundering Laws”); and no action, suit or proceeding by or before any court or  governmental agency, authority or body or any arbitrator or non-governmental authority involving  the Company with respect to the Money Laundering Laws is pending or, to the Company’s  knowledge, threatened.   4.27 OFAC. Neither the Company, its subsidiaries nor any of its officers, nor to the  knowledge of the Company, after due inquiry, any director, agent, employee or affiliate of the  Company and its subsidiaries is (i) currently subject to or the target of any economic, financial or  trade sanctions administered or enforced by the U.S. government, including those administered by  the Office of Foreign Assets Control of the U.S. Department of the Treasury or the U.S. Department  of State, the United Nations Security Council, the European Union, Her Majesty’s Treasury of the  United Kingdom or any other relevant sanctions authority (collectively, “Sanctions”), or (ii)  operating, organized or resident in, or is engaging or has engaged in the past five years in any  transaction or dealing, directly or indirectly, with a country or territory that is the target of  comprehensive U.S. Sanctions or a designated state sponsor of terrorism (collectively, “Sanctioned  Country”); and the Company will not directly or indirectly use the proceeds of the offering of the  Shares contemplated hereby, or lend, contribute or otherwise make available such proceeds to any  joint venture partner or other person or entity (i) for the purpose of funding, financing or facilitating  any activities, business or transaction of or with any person that is the target of Sanctions, or in any  Sanctioned Country, or (ii) in any manner that would reasonably be expected to result in the  violation of any Sanctions applicable to any party hereto.   4.28 Manipulation of Price.  The Company has not taken, directly or indirectly, any  action designed, or which has constituted or would reasonably be expected to cause or result in the  stabilization or manipulation of the price of any security of the Company to facilitate the sale of  any of the Shares.   4.29 No Integrated Offering.  Neither of the Company nor any of its subsidiaries,  officers, directors, any person acting on its or their behalf, has directly or indirectly, made any  offers or sales of any security or solicited any offers to buy any Company security, under  circumstances that would adversely affect reliance by the Company on Section 4(a)(2) of the  Securities Act or require registration of any of the Shares under the Securities Act or cause this  offering of the Shares to be integrated with prior offerings by the Company for purposes of the  Securities Act.  4.30 Certain Fees. No brokerage or finder’s fees or commissions are or will be payable  by the Company or any of its subsidiaries to any broker, financial advisor or consultant, finder,  placement agent, investment banker, bank or other Person with respect to the transactions  contemplated by this Agreement. The Purchasers shall have no obligation with respect to any fees  or with respect to any claims made by or on behalf of other Persons for fees of a type contemplated  in this Section that may be due in connection with the transactions contemplated by this Agreement.  





 






 11 4.31 Registration Rights.  Other than each of the Purchasers, no person has any right to  cause the Company or any of its subsidiaries to effect the registration under the Securities Act of  any securities of the Company or any of its subsidiaries.  4.32 Disqualification Event.  No Disqualification Event (as defined below) is applicable  to the Company or, to the Company’s knowledge, any Company Covered Person (as defined  below), except for a Disqualification Event as to which Rule 506(d)(2)(ii)-(iv) or (d)(3) under the  Securities Act is applicable. The Company has complied, to the extent applicable, with any  disclosure obligations under Rule 506(e) under the Securities Act. “Company Covered Person”  means, with respect to the Company as an “issuer” for purposes of Rule 506 under the Securities  Act, any person listed in the first paragraph of Rule 506(d)(1) under the Securities Act.  4.33 Arrangements. The Company has not entered into any side letter or similar  agreement with any person or entity in connection with such person’s or entity’s direct or indirect  investment in the Company, and no agreement includes terms and conditions (including, without  limitation, with respect to purchase price) that are favorable in any material respect and/or  materially more advantageous to any such other person or entity than Purchasers hereunder.  4.34 Cybersecurity.  (i)(x) There has been no material security breach or other  compromise of or relating to any of the Company’s or any of its subsidiaries’ information  technology and computer systems, networks, hardware, software, data (including the data of its  respective customers, employees, suppliers, vendors and any third party data maintained by or on  behalf of it), equipment or technology (collectively, “IT Systems and Data”) and (y) neither the  Company nor any of its subsidiaries have been notified of, and have no knowledge of any event or  condition that would reasonably be expected to result in, any security breach or other compromise  to its IT Systems and Data; (ii) the Company and its subsidiaries are presently in compliance with  all applicable laws or statutes and all judgments, orders, rules and regulations of any court or  arbitrator or governmental or regulatory authority, internal policies and contractual obligations  relating to the privacy and security of IT Systems and Data and to the protection of such IT Systems  and Data from unauthorized use, access, misappropriation or modification, except as would not,  individually or in the aggregate, reasonably be expected to have a Material Adverse Effect; (iii) the  Company and its subsidiaries have implemented and maintained commercially reasonable  safeguards to maintain and protect its material confidential information and the integrity,  continuous operation, redundancy and security of all IT Systems and Data; and (iv) the Company  and its subsidiaries have implemented backup and disaster recovery technology substantially  consistent with industry standards and practices.  4.35 Disclosure.  All due diligence materials regarding the Company, its business and  the transactions contemplated hereby, furnished by or on behalf of the Company to the Purchasers  when taken together with the SEC Documents and Schedule of Exceptions, true and correct in all  material respects.    SECTION 5. REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS.  5.1 Each Purchaser, severally and not jointly, represents and warrants, as of the date  hereof and as of the Closing Date, to the Company that:  





 






 12 (a) Such Purchaser (if an entity) is a validly existing corporation, limited  partnership, limited liability company, trust, pension plan, or government plan and has all requisite  corporate, partnership, limited liability company or other requisite organizational power and  authority to enter into and consummate the transactions contemplated by this Agreement and to  carry out its obligations hereunder and thereunder, and to invest in the Shares pursuant to this  Agreement.  (b) Such Purchaser acknowledges that it can bear the economic risk and  complete loss of its investment in the Shares and has such knowledge and experience in financial  or business matters that it is capable of evaluating the merits and risks of the investment  contemplated hereby.  (c) Such Purchaser has had an opportunity to receive, review and understand  all information related to the Company requested by it and to ask questions of and receive answers  from the Company regarding the Company, its business and the terms and conditions of the  offering of the Shares, and has conducted and completed its own independent due diligence. Such  Purchaser acknowledges that the Company has made available the SEC Documents. Based on the  information such Purchaser has deemed appropriate, and without reliance upon any placement  agent, it has independently made its own analysis and decision to enter into this Agreement. Such  Purchaser is relying exclusively on the contents of this Agreement and its own sources of  information, investment analysis and due diligence (including professional advice it deems  appropriate) with respect to the execution, delivery and performance of this Agreement, the Shares  and the business, condition (financial and otherwise), management, operations, properties and  prospects of the Company, including but not limited to all business, legal, regulatory, accounting,  credit and tax matters. Purchaser is not relying and has not relied on any representations or  warranties whatsoever regarding the subject matter of this Agreement, express or implied, except  for the representations and warranties set forth in Section 4. Such representations and warranties  by the Company constitute the sole and exclusive representations and warranties of the Company  in connection with the transactions contemplated by this Agreement and Purchaser understands,  acknowledges and agrees that all other representations and warranties of any kind or nature  whether express, implied or statutory are specifically disclaimed by the Company.  (d) The Shares to be received by such Purchaser hereunder will be acquired for  such Purchaser’s own account, not as nominee or agent, and not with a view to the resale or  distribution of any part thereof in violation of the Securities Act.   (e) Such Purchaser has no present intention of selling, granting any  participation in, or otherwise distributing the same in violation of the Securities Act without  prejudice, however, to such Purchaser’s right at all times to sell or otherwise dispose of all or any  part of such Shares in compliance with applicable federal and state securities laws.   (f) Such Purchaser understands that the Shares are characterized as “restricted  securities” under the U.S. federal securities laws inasmuch as they are being acquired from the  Company in a transaction not involving a public offering and that under such laws and applicable  regulations such securities may be resold without registration under the Securities Act only in  certain limited circumstances. Purchaser will not, directly or indirectly, offer, sell, pledge, transfer  or otherwise dispose of (or solicit any offers to buy, purchase or otherwise acquire or take a pledge  





 






 13 of) any of the securities purchased hereunder except in compliance with the Securities Act,  applicable blue sky laws, and the rules and regulations promulgated thereunder.  (g) Such Purchaser has determined based on its own independent review and  such professional advice as it deems appropriate that its purchase of the Shares and participation  in the transactions contemplated by this Agreement (i) are fully consistent with its financial needs,  objectives and condition, (ii) comply and are fully consistent with all investment policies,  guidelines and other restrictions applicable to such Purchaser, (iii) have been duly authorized and  approved by all necessary action on the part of Purchaser, (iv) do not and will not violate or  constitute a default under such Purchaser’s charter, by-laws or other constituent document or, to  the extent defaults would have a material effect on the Purchaser’s ability to perform its obligations  under this Agreement, under any law, rule, regulation, agreement or other obligation by which  such Purchaser is bound and (v) are a fit, proper and suitable investment for such Purchaser,  notwithstanding the substantial risks inherent in investing in or holding the Shares.  (h) The execution, delivery and performance by such Purchaser of this  Agreement have been duly authorized and this Agreement has been duly executed and when  delivered will constitute the valid and legally binding obligation of such Purchaser, enforceable  against such Purchaser in accordance with its terms, except as may be limited or otherwise affected  by means limitations on enforcement and other remedies imposed by or arising under or in  connection with applicable bankruptcy, insolvency, fraudulent transfer, reorganization,  moratorium and other similar laws of general applicability, relating to or affecting creditors’ rights  generally from time to time in effect or general principles of equity (including concepts of  materiality, reasonableness, good faith, and fair dealing with respect to those jurisdictions that  recognize such concepts).  (i) Such Purchaser is an “accredited investor” within the meaning of Rule  501(a) under the Securities Act. Such Purchaser is not a broker or dealer registered pursuant to  Section 15 of the Exchange Act (a “registered broker-dealer”) or an entity engaged in a business  that would require it to be so registered and is not affiliated with a registered broker dealer or an  entity engaged in a business that would require it to be so registered. Purchaser is not party to any  agreement for distribution of any of the Shares.  (j) Such Purchaser shall have completed or caused to be completed and  delivered to the Company at no later than the date hereof, the Purchaser Questionnaire, and the  answers to the Purchaser Questionnaire are true and correct in all material respects as of the date  of this Agreement and will be true and correct as of the Closing Date.  (k) Such Purchaser understands that no United States federal or state agency,  or similar agency of any other country, has reviewed, approved, passed upon, or made any  recommendation or endorsement of the Company or the purchase of the Shares.   (l) Such Purchaser has not taken any of the actions set forth in, or is not subject  to, the disqualification provisions of Rule 506(d)(1) of the Securities Act (each a “Disqualification  Event”). Purchaser hereby agrees that it shall notify the Company promptly in writing in the event  a Disqualification Event becomes applicable to the Purchaser or any of its Rule 506(d) Related  Parties, except, if applicable, for a Disqualification Event as to which Rule 506(d)(2)(ii) or (iii) or  





 






 14 (d)(3) is applicable. For purposes of this Subsection 5.1(j), “Rule 506(d) Related Party” shall mean  a person or entity that is a beneficial owner of the Purchaser’s securities for purposes of Rule  506(d) of the Securities Act.  (m) Such Purchaser did not learn of the investment in the Shares as a result of  any general solicitation or general advertising.  (n) Such Purchaser’s residence (if an individual) or offices in which its  investment decision with respect to the Shares was made (if an entity) are located at the address  immediately below such Purchaser’s name on its signature page hereto.  (o) Such Purchaser (including any person controlling, controlled by, or under  common control with such Purchaser, as the term “control” is defined pursuant to the Hart-Scott- Rodino Antitrust Improvements Act of 1976, as amended, and its implementing regulations (the  “HSR Act”)) in connection with the consummation of the transactions contemplated by this  Agreement will not be required to and will not complete a filing with the U.S. government pursuant  to the HSR Act.   5.2 Other than consummating the transactions contemplated hereunder, such Purchaser  has not, nor has any person acting on behalf of or pursuant to any understanding with such  Purchaser, directly or indirectly executed any purchases or sales, including all “short sales” as  defined in Rule 200 of Regulation SHO under the Exchange Act (but shall not be deemed to include  the location and/or reservation of borrowable shares of Common Stock) (“Short Sales”), of the  securities of the Company during the period commencing as of the time that such Purchaser was  first contacted by the Company or any other person regarding the transactions contemplated hereby  and ending immediately prior to the Effective Date. Notwithstanding the foregoing, in the case of  a Purchaser that is a multi-managed investment vehicle whereby separate portfolio managers  manage separate portions of such Purchaser’s assets and the portfolio managers have no direct  knowledge of the investment decisions made by the portfolio managers managing other portions of  such Purchaser’s assets, the representation set forth above shall only apply with respect to the  portion of assets managed by the portfolio manager that made the investment decision to purchase  the Shares covered by this Agreement. Other than to other persons party to this Agreement, such  Purchaser has maintained the confidentiality of all disclosures made to it in connection with this  transaction (including the existence and terms of this transaction). Notwithstanding the foregoing,  for avoidance of doubt, nothing contained herein shall constitute a representation or warranty, or  preclude any actions, with respect to the identification of the availability of, or securing of, available  shares to borrow in order to effect Short Sales or similar transactions in the future.  5.3 Purchaser understands that nothing in this Agreement or any other materials  presented to Purchaser in connection with the purchase and sale of the Shares constitutes legal, tax  or investment advice.  Purchaser has consulted such legal, tax and investment advisors as it, in its  sole discretion, has deemed necessary or appropriate in connection with its purchase of the Shares.  5.4 Legends.    (a) Purchaser understands that, until such time as the Shares have been registered for  resale pursuant to the Registration Statement or the Shares may be sold pursuant to Rule 144 under  





 






 15 the Securities Act (“Rule 144”) without any restriction as to the number of securities as of a  particular date that can then be immediately sold, the certificate or book entry notations evidencing  the Shares may bear one or more legends in substantially the following form and substance:   “THESE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE U.S.  SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR  ANY OTHER APPLICABLE SECURITIES LAWS AND HAVE BEEN ISSUED  IN RELIANCE UPON AN EXEMPTION FROM THE REGISTRATION  REQUIREMENTS OF THE SECURITIES ACT AND SUCH OTHER  SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR  PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED,  TRANSFERRED OR OTHERWISE DISPOSED OF, EXCEPT PURSUANT TO  AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES  ACT OR PURSUANT TO A TRANSACTION WHICH IS EXEMPT FROM, OR  NOT SUBJECT TO, SUCH REGISTRATION, IN EACH CASE IN  ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS, AND IN THE  CASE OF A TRANSACTION EXEMPT FROM, OR NOT SUBJECT TO, SUCH  REGISTRATION, UNLESS THE COMPANY HAS RECEIVED AN OPINION  OF COUNSEL REASONABLY SATISFACTORY TO IT THAT SUCH  TRANSACTION DOES NOT REQUIRE REGISTRATION UNDER THE  SECURITIES ACT AND SUCH OTHER APPLICABLE LAWS.”  In addition, certificates or book entry notations representing the Shares may contain  such other restrictive legends as may be reasonably required under applicable state blue  sky laws and, if applicable, a legend regarding affiliate status of the Purchaser set forth in  Schedule 1 hereto, in the form included therein.    (b) The Company agrees that at such time as such legend is no longer required under  this section, it will, no later than five (5) business days following the delivery by a Purchaser to  the Company or the Company’s transfer agent of a certificate representing Shares, and if such  Shares are certificated, issued with a restrictive legend, together with such representations and  covenants of such Purchaser or such Purchaser’s executing broker as the Company may reasonably  require in connection therewith, deliver or cause to be delivered to such Purchaser a book entry  position representing such shares that is free from any legend referring to the Securities Act.  The  Company shall not make any notation on its records or give instructions to any transfer agent of  the Company that enlarge the restrictions on transfer set forth in this section.  To the extent that  certificates or book entry positions are issued representing the Shares, such certificates or book  entry positions subject to legend removal hereunder shall be transmitted by the transfer agent of  the Company to the Purchasers by crediting the account of such Purchaser’s prime broker with the  Depository Trust Company (“DTC”).  All costs and expenses related to the removal of the legends  and the reissuance of any Shares shall be borne by the Company.   (c) The restrictive legend set forth in this section above shall be removed and the  Company shall issue a certificate or book entry position without such restrictive legend or any  other restrictive legend to the holder of the applicable shares upon which it is stamped or issue to  such holder by electronic delivery with the applicable balance account at DTC or in physical  certificated shares, if appropriate, if (i) such Shares are registered for resale under the Securities  





 






 16 Act (provided that, if the Purchaser is selling pursuant to an effective registration statement  registering the Shares for resale, the Purchaser agrees to only sell such Shares during such time  that such registration statement is effective and such Purchaser is not aware or has not been notified  by the Company that such registration statement has been withdrawn or suspended, and only as  permitted by such registration statement); (ii) such Shares are sold or transferred pursuant to Rule  144 (if the transferor is not an affiliate of the Company); or (iii) such Shares are eligible for sale  without the requirement for the Company to be in compliance with the current public information  required under Rule 144 as to such securities and without volume or manner-of-sale restrictions.   Upon Rule 144 becoming available for the resale of the Shares, without the requirement for the  Company to be in compliance with the current public information required under Rule 144 as to  the Shares and without volume or manner-of-sale restrictions, the Company shall, at the request of  a Purchaser, issue to the Company’s transfer agent the instructions with respect to legend removal  consistent with this section. Any fees (with respect to the transfer agent, the Company’s counsel  or otherwise) associated with the issuance of such opinion or the removal of such legend shall be  borne by the Company.  5.5 Exculpation Among Purchasers.  Purchaser acknowledges that it is not relying  upon any other Purchaser, or any officer, director, employee, agent, partner, member or affiliate of  any such other Purchaser, in making its investment or decision to invest in the Company.  Purchaser  agrees that neither any Purchaser nor the respective controlling Persons, officers, directors,  partners, agents, or employees of any Purchaser shall be liable to any other Purchaser for any action  heretofore taken or omitted to be taken by any of them in connection with the purchase of the  Shares.   SECTION 6. CONDITIONS TO COMPANY’S OBLIGATIONS AT THE CLOSING.  6.1 Each Purchaser’s obligation to purchase the Shares at the Closing is subject to the  fulfillment of the following conditions, on or prior to the Closing Date, any of which may be waived  by such Purchaser:  (a) The representations and warranties made by the Company in Section 4  hereof shall be true and correct in all material respects as of the date when made and as of the  Closing Date, as though made on and as of such date, except to the extent that any such  representation or warranty expressly speaks as of an earlier date, in which case such representation  or warranty shall be true and correct in all material respects as of such earlier date. The Company  shall have performed in all material respects all obligations and covenants in this Agreement  required to be performed by it on or prior to the Closing Date.  (b) The Company shall have filed with Nasdaq a Notification Form: Listing of  Additional Shares for the listing of the Shares.  (c) No stop order or suspension of trading shall have been imposed by Nasdaq,  the Commission or any other governmental regulatory body with respect to public trading in the  Common Stock (any such order or suspension, a “Suspension”).  





 






 17 (d) Each Purchaser shall have received a certificate signed by an executive  officer of the Company, dated as of the Closing Date, certifying the fulfillment of the conditions  specified in subsections (a), (b), and (c) of this Section 6.1.  (e) Each Purchaser shall have received an opinion of Latham & Watkins LLP,  special counsel to the Company, dated as of the Closing Date, in form and substance reasonably  acceptable to the Purchasers.  (f) Each Purchaser shall have received a certificate signed by the Company’s  Secretary, dated as of the Closing Date, certifying the resolutions adopted by the board of directors  of the Company (the “Board”) approving the transactions contemplated by this Agreement and the  issuance of the Shares, certifying the current versions of the certificate of incorporation and by- laws of the Company and certifying as to the signatures and authority of persons signing this  Agreement and related documents on behalf of the Company.  (g) No judgment, writ, order, injunction, award or decree of or by any court, or  judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any  governmental authority, shall have been issued, and no action or proceeding shall have been  instituted by any governmental authority, enjoining or preventing the consummation of the  transactions contemplated hereby.  6.2 The obligation of the Company to sell and issue the Shares and to deliver the Shares  to each Purchaser, individually, as set forth in the Schedule of Purchasers at the Closing is subject  to the satisfaction of the Company on or prior to the Closing Date of the following conditions, any  of which may be waived by the Company:  (a) The representations and warranties made by the Purchasers in Section 5  hereof shall be true and correct in all material respects as of the date when made and as of the  Closing Date, except to the extent that any such representation or warranty expressly speaks as of  an earlier date, in which case such representation or warranty shall be true and correct in all  material respects as of such earlier date. Each Purchaser shall have performed in all material  respects all obligations and covenants herein required to be performed by it on or prior to the  Closing Date.  (b) On or prior to the business date immediately prior to the Closing Date, each  Purchaser shall have delivered or caused to be delivered its Purchase Amount, in United States  dollars, via wire transfer and in immediately available funds pursuant to the wire instructions  delivered to such Purchaser by the Company on or prior to the Closing Date, and the Company  shall have received such payment in the full.   (c) Such Purchaser shall have executed and delivered to the Company the  Purchaser Questionnaire and a confidentiality or non-disclosure agreement in form and substance  satisfactory to the Company.   (d) No judgment, writ, order, injunction, award or decree of or by any court, or  judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any  governmental authority, shall have been issued, and no action or proceeding shall have been  





 






 18 instituted by any governmental authority, enjoining or preventing the consummation of the  transactions contemplated hereby.  SECTION 7. TERMINATION OF OBLIGATIONS TO EFFECT CLOSING; EFFECTS.  7.1 The obligations of the Company, on the one hand, and the Purchasers, on the other  hand, to effect the Closing shall terminate as follows:  (a) upon the mutual written consent of the Company and such Purchasers that  agreed to purchase a majority of the Shares to be issued and sold pursuant to this Agreement;   (b) by a Purchaser (with respect to itself only) if any of the conditions set forth  in Section 6.1 shall have become incapable of fulfillment with respect to the Company and shall  not have been waived by the Purchaser, prior to the Closing Date; provided, however, that if the  failure of any such condition is a result of any curable breach by the Company of this Agreement,  such breach has not been cured by the earlier of 10 days after the giving of written notice by the  Purchaser to the Company of the breach; or   (c) by the Company if any of the conditions set forth in Section 6.2 shall have  become incapable of fulfillment, with respect to the Purchasers and shall not have been waived by  the Company, prior to the Closing Date; provided, however, that if the failure of any such condition  is a result of any curable breach by the Purchaser of this Agreement, such breach has not been  cured by the earlier of 10 days after the giving of written notice by the Company to the Purchaser  of the breach.   provided, however, that the right to terminate this Agreement under this Section 7.1 shall not be  available to any party whose failure to comply with its obligations under this Agreement has been  the cause of or resulted in the failure of the Closing to occur.  7.2 Nothing in this Section 7 shall be deemed to release any party from any liability for  any breach by such party of the terms and provisions of this Agreement or to impair the right of  any party to compel specific performance by any other party of its obligations under this  Agreement.  SECTION 8. BROKER’S FEES.  The Company and each Purchaser (severally and not jointly), hereby represent that there  are no brokers or finders entitled to compensation, commissions, placement agent’s fees or similar  payments in connection with the sale of the Shares, and shall indemnify each other for any such  fees for which they are responsible.    SECTION 9. ADDITIONAL COVENANTS AND AGREEMENTS.  9.1 Nasdaq Listing. The Company will use commercially reasonable efforts to continue  the listing and trading of its Common Stock on Nasdaq and, in accordance, therewith, will use  commercially reasonable efforts to comply in all respects with the Company’s reporting, filing and  other obligations under the bylaws or rules of such market or exchange, as applicable.  





 






 19 9.2 Form D; Blue Sky Filings. The Company agrees to timely file a Form D with  respect to the Shares and to provide a copy thereof, promptly upon request of any Purchaser.   9.3 Integration. The Company shall not, and shall use its commercially reasonable  efforts to ensure that no affiliate of the Company shall, sell, offer for sale or solicit offers to buy or  otherwise negotiate in respect of any security (as defined in Section 2 of the Securities Act) that  will be integrated with the offer or sale of the Shares in a manner that would require the registration  under the Securities Act of the sale of the Shares to the Purchasers, or that will be integrated with  the offer or sale of the Shares for purposes of the rules and regulations of any trading market such  that it would require stockholder approval prior to the closing of such other transaction unless  stockholder approval is obtained before the closing of such subsequent transaction.  9.4 Short Sales and Confidentiality After the Date Hereof. Each Purchaser covenants  that neither it nor any affiliates acting on its behalf or pursuant to any understanding with it will,  directly or indirectly, engage in any transactions involving the Company’s securities (including,  without limitation, any Short Sales involving the Company’s securities) during the period from the  date hereof until the earlier of such time as (i) after the transactions contemplated by this Agreement  are first publicly announced or (ii) this Agreement is terminated in full. Each Purchaser understands  and acknowledges that the Commission currently takes the position that coverage of short sales of  shares of the Common Stock “against the box” prior to effectiveness of a resale registration  statement with securities included in such registration statement would be a violation of Section 5  of the Securities Act, as set forth in Item 239.10 of the Securities Act Rules Compliance and  Disclosure Interpretations compiled by the Office of Chief Counsel, Division of Corporation  Finance.   9.5 Securities Laws Disclosure; Publicity. By 5:00 P.M., New York City time, on the  trading day immediately following the Effective Date, the Company shall issue a press release  disclosing the material terms of the transactions contemplated hereby.  On or before 9:00 A.M.,  New York City time, on the third trading day immediately following the execution of this  Agreement, the Company will file a Current Report on Form 8-K (the “8-K”) with the Commission  describing the material terms of this Agreement (and including this Agreement as an exhibit to the  Form 8-K). Notwithstanding the foregoing, the Company shall not publicly disclose the name of  any Purchaser, or include the name of any Purchaser in any public filing with the Commission or  any regulatory agency or Nasdaq, without the consent of such Purchaser, which consent shall not  be unreasonably withheld, conditioned or delayed, except: (a) as required by federal securities law  in connection with (i) any registration statement and (ii) the filing of this Agreement with the  Commission; (b) the filing of a Form D with the Commission under the Securities Act and (c) to  the extent such disclosure is required by law or Nasdaq regulations, in which case the Company  shall provide the Purchaser with prior notice of such disclosure permitted under this clause (c).    9.6 Furnishing Information.  In order to enable the Purchasers to sell the Shares under  Rule 144, until such time as no Purchaser holds Shares, the Company shall use its commercially  reasonable efforts to timely file (or obtain extensions in respect thereof and file within the  applicable grace period) all reports required to be filed by the Company after the date hereof  pursuant to the Exchange Act. During such twelve (12) month period, if the Company is not  required to file reports pursuant to the Exchange Act, it will prepare and furnish to the Purchasers  and make publicly available in accordance with Rule 144(c) such information as is required for the  





 






 20 Purchasers to sell the Shares under Rule 144. Additionally, the Company covenants and agrees to  take such further action as any Purchaser may reasonably request to enable any such Purchaser to  sell such Shares without registration under the Securities Act within the limitation of the  exemptions provided by Rule 144 promulgated under the Securities Act, including providing any  legal opinions addressed, delivered and acceptable to the Company’s transfer agent and the affected  Purchasers relating to such sale pursuant to pursuant to Rule 144, and furnishing to the Purchasers  upon any reasonable request a written statement by the Company as to its compliance with the  public information requirements of Rule 144 promulgated under the Securities Act and/or the  Exchange Act.  9.7 Confirmation of Securities Holdings.  Upon request of a Purchaser, as long as such  Purchaser is a record holder of the Shares, the Company will use commercially reasonable efforts  to cause the transfer agent of the Shares to provide confirmation of such Purchaser’s Common  Stock holdings.  9.8 Use of Proceeds.  The Company shall use the net proceeds of the sale of the Shares  to for general working capital, including the purchase of inventory. The Company shall not use the  net proceeds of the sale of the Shares to effect any cash dividend or other form of distribution to  any stockholders of the Company.  9.9 Piggyback Registration Rights.  If the Company shall determine to prepare and  file with the Commission a registration statement relating to an offering for its own account or the  account of others under the Securities Act of any of its equity securities, other than on Form S-4 or  Form S-8 (each as promulgated under the Securities Act) or their then equivalents relating to equity  securities to be issued solely in connection with any acquisition of any entity or business or equity  securities issuable in connection with the Company’s stock option or other employee benefit plans,  then the Company shall deliver to each Purchaser a written notice of such determination and, if  within fifteen (15) business days after the date of the delivery of such notice, a Purchaser shall so  request in writing, the Company shall include in such registration statement all or any part of the  Shares that such Purchaser requests to be registered (a “Piggyback Registration”); provided,  however, that (i) the Company shall not be required to register any Shares that are eligible for resale  pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and  acceptable to the Company transfer agent and the affected Purchasers (without volume restrictions  or current public information requirements) promulgated by the Commission pursuant to the  Securities Act or that are the subject of a then effective registration statement that is available for  resales or other dispositions by such Purchaser and (ii) the Company’s obligations to include the  Shares in the registration statement are contingent upon Purchasers furnishing in writing to the  Company such information regarding such Purchasers, the Shares of the Company held by such  Purchasers and the intended method of disposition of the Shares as shall be reasonably requested  by the Company to effect the registration of the Shares, and shall execute such documents in  connection with such registration as the Company may reasonably request that are customary of a  selling stockholder in similar situations, including providing that the Company shall be entitled to  postpone and suspend the effectiveness or use of the Registration Statement during any customary  blackout or similar period or as permitted hereunder. If a managing underwriter or underwriters of  any proposed offering of equity securities included in a Piggyback Registration informs the  Company and any Purchaser in writing that, in its or their opinion, the number of securities that  such Purchaser and any other persons intend to include in such offering exceeds the number that  





 






 21 can be sold in such offering without being likely to have a significant adverse effect on the price,  timing or distribution of the securities offered or the market for the securities offered, then the  securities to be included in such registration statement shall be (i) first, one hundred percent (100%)  of the securities that the Company proposes to sell, and (ii) second, and only if all the securities  referred to in clause (i) have been included, the number of Shares requested to be sold by each  Purchaser that, in the opinion of such managing underwriter or underwriters, can be sold without  having such adverse effect, and (iii) third, and only if all of the Shares referred to in clause (ii) have  been included in such registration statement, any other securities eligible for inclusion in such  registration statement. The Company shall have the right to terminate or withdraw any registration  initiated by it under this Section 2(a)(ii) prior to the effectiveness of such registration whether or  not the Purchasers have elected to include securities in such registration. Additionally, the  Company covenants and agrees to take such further action as any Purchaser may reasonably request  to enable any such Purchaser to sell such Shares pursuant to the Piggyback Registration, including  providing any legal opinions addressed, delivered and acceptable to the Company’s transfer agent  and the affected Purchasers relating to such sale pursuant to the Piggyback Registration.  SECTION 10. INDEMNIFICATION.  10.1 Indemnification by the Company.  The Company agrees to indemnify and hold  harmless each of the Purchasers, the officers, directors, partners, members, and employees of each  Purchaser, each Person, if any, who controls any such Purchaser (within the meaning of Section 15  of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, partners,  members and employees of each such controlling person (each, an “Indemnified Party”), against  any losses, claims, damages, liabilities or expenses, joint or several, to which such Indemnified  Party may become subject under the Securities Act, the Exchange Act, or any other federal or state  statutory law or regulation, or at common law (including in settlement of any litigation, if such  settlement is effected with the written consent of the Company), insofar as such losses, claims,  damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of  or are based in whole or in part on (i) the inaccuracy in the representations and warranties of the  Company contained in this Agreement, (ii) the failure of the Company to perform its obligations  hereunder, or (iii) any untrue statement or alleged untrue statement or omission or alleged omission  of any material fact contained in any registration statement, any preliminary prospectus or final  Prospectus, or any amendment or supplement thereof filed pursuant to or in connection with a  Piggyback Registration (such registration statement, the “Registration Statement”); and the  Company will reimburse each Indemnified Party for legal and other expenses reasonably incurred  as such expenses are reasonably incurred by such Indemnified Party in connection with  investigating, defending, settling, compromising or paying such loss, claim, damage, liability,  expense or action; provided, however, that the Company will not be liable in any such case to the  extent that any such loss, claim, damage, liability or expense arises out of or is based upon (i) the  failure of such Indemnified Party to comply with the covenants and agreements contained herein,  (ii) the inaccuracy of any representations made by such Indemnified Party herein, or (iii) an untrue  statement or alleged untrue statement or omission or alleged omission so made in conformity with  information furnished by any Purchaser or any such controlling person in writing specifically for  use in such Registration Statement or related prospectus or to the extent that such information  relates to such Purchaser’s proposed method of distribution of Shares and was reviewed and  expressly approved in writing by the Purchaser expressly for use in such Registration Statement or  related prospectus, and provided further that the foregoing indemnity shall not apply to amounts  





 






 22 paid in settlement of any loss, claim, damage, liability or expense if such settlement is effected  without the consent of the Company.  10.2 Indemnification by Purchasers.  Each Purchaser shall severally, and not jointly,  indemnify and hold harmless the other Purchasers and the Company, its directors, officers, and  employees, each Person who controls the Company (within the meaning of Section 15 of the  Securities Act and Section 20 of the Exchange Act) and the directors, officers, partners, members  or employees of such controlling persons, against any losses, claims, damages, liabilities or  expenses to which the Company, each of its directors or each of its controlling Persons may become  subject, under the Securities Act, the Exchange Act, or any other federal or state statutory law or  regulation, or at common law or otherwise (including in settlement of any litigation, if such  settlement is effected with the written consent of such Purchaser) insofar as such losses, claims,  damages, liabilities or expenses (or actions in respect thereof as contemplated below) arise out of  or are based upon (i) any failure by such Purchaser to comply with the covenants and agreements  contained herein unless such failure by such Purchaser is directly caused by the Company’s failure  to provide written notice of a Suspension to such Purchaser, (ii) the inaccuracy of any representation  made by such Purchaser herein, or (iii) any untrue statement of a material fact or any omission of  a material fact required to be stated in a Registration Statement or related prospectus or preliminary  prospectus or amendment or supplement thereto or necessary to make the statements therein not  misleading, to the extent, but only to the extent that such untrue statement or omission is contained  in any information furnished in writing by the Purchaser to the Company specifically for inclusion  in such Registration Statement or related prospectus or amendment or supplement thereto and has  not been corrected in a subsequent writing prior to the sale of the Shares thereunder, or to the extent  that such information relates to the Purchaser’s or the Purchaser’s proposed method of distribution  of Shares and was reviewed and expressly approved in writing by the Purchaser expressly for use  in the Registration Statement or related prospectus or amendment or supplement thereto; and will  reimburse the Company, each of its directors, and each of its controlling Persons for any legal and  other expense reasonably incurred, as such expenses are reasonably incurred by the Company, each  of its directors, and each of its controlling persons in connection with investigating, defending,  settling, compromising or paying any such loss, claim, damage, liability, expense or action;  provided, however, that the foregoing indemnity shall not apply to amounts paid in settlement of  any loss, claim, damage, liability or expense if such settlement is effected without the consent of  the Purchaser. No Purchaser shall be liable for the indemnification obligations of any other  Purchaser. Notwithstanding anything to the contrary herein, in no event shall the liability of any  Purchaser be greater in amount than the dollar amount of Purchase Amount paid by such Purchaser  for the Shares pursuant to this Agreement.  SECTION 11. NOTICES.  All notices, requests, consents and other communications hereunder shall be in writing,  shall be sent by confirmed electronic mail, or mailed by first-class registered or certified airmail,  or nationally recognized overnight express courier, postage prepaid, and shall be deemed given  when so sent in the case of electronic mail transmission, or when so received in the case of mail  or courier, and addressed as follows:   if to the Company, to:  





 






 23 Lifecore Biomedical, Inc.  3515 Lyman Boulevard  Chaska, Minnesota 55318  Attention: John D. Morberg, Chief Financial Officer  E-Mail:  jmorberg@landec.com    with a copy (which shall not constitute notice) to:  Latham & Watkins LLP   650 Town Center Drive  20th Floor  Costa Mesa, CA 92626  Attention:  Darren Guttenberg   E-Mail:  Darren.Guttenberg@lw.com  or to such other person at such other place as the Company shall designate to the Purchasers  in writing; and if to the Purchasers, at the address as set forth at the end of this Agreement, or at  such other address or addresses as may have been furnished to the Company in writing.  SECTION 12. MISCELLANEOUS.  12.1 Waivers and Amendments.  Neither this Agreement nor any provision hereof may  be changed, waived, discharged, terminated, modified or amended except upon the written consent  of the Company and holders of at least a majority of the Shares; provided, that, in the event of any  such change, waiver, discharge, termination, modification or amendment, the Company shall notify  each of the Purchasers of such change, waiver, discharge, termination, modification or amendment  at the address as set forth at the end of this Agreement, or at such other address or addresses as may  have been furnished to the Company in writing.  12.2 Headings.  The headings of the various sections of this Agreement have been  inserted for convenience of reference only and shall not be deemed to be part of this Agreement.  12.3 Severability.  Any provision of this Agreement that is prohibited or unenforceable  in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or  unenforceability without invalidating the remaining provisions hereof but shall be interpreted as if  it were written so as to be enforceable to the maximum extent permitted by applicable law, and any  such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable  such provision in any other jurisdiction. To the extent permitted by applicable law, the parties  hereby waive any provision of law which renders any provision hereof prohibited or unenforceable  in any respect.  12.4 Replacement of Shares.  If the Shares are certificated and any certificate or  instrument evidencing any Shares is mutilated, lost, stolen or destroyed, the Company shall issue  or cause to be issued in exchange and substitution for and upon cancellation thereof, or in lieu of  and substitution therefor, a new certificate or instrument, but only upon receipt of evidence  reasonably satisfactory to the Company and the Company’s transfer agent of such loss, theft or  destruction and the execution by the holder thereof of a customary lost certificate affidavit of that  





 






 24 fact and an agreement to indemnify and hold harmless the Company and the Company’s transfer  agent for any losses in connection therewith or, if required by the transfer agent, a bond in such  form and amount as is required by the transfer agent.  The applicants for a new certificate or  instrument under such circumstances shall also pay any reasonable third-party costs associated with  the issuance of such replacement Shares.  If a replacement certificate or instrument evidencing any  Shares is requested due to a mutilation thereof, the Company may require delivery of such mutilated  certificate or instrument as a condition precedent to any issuance of a replacement.  12.5 Independent Nature of Purchasers’ Obligations and Rights.  The obligations of  each Purchaser under this Agreement are several and not joint with the obligations of any other  Purchaser, and no Purchaser shall be responsible in any way for the performance of the obligations  of any other Purchaser under this Agreement. Nothing contained herein and no action taken by any  Purchaser pursuant hereto, shall be deemed to constitute the Purchaser as a partnership, an  association, a joint venture or any other kind of entity, or create a presumption that the Purchasers  are in any way acting in concert or as a group, or are deemed affiliates (as such term is defined  under the Exchange Act) with respect to such obligations or the transactions contemplated by this  Agreement. Each Purchaser shall be entitled to independently protect and enforce its rights,  including without limitation the rights arising out of this Agreement, and it shall not be necessary  for any other Purchaser to be joined as an additional party in any proceeding for such purpose.  12.6 Governing Law; Jurisdiction; Specific Performance.  This Agreement and any  claim, counterclaim or dispute of any kind or nature whatsoever arising out of or in any way relating  to this Agreement (“Claim”), directly or indirectly, shall be governed by, and construed in  accordance with, the laws of the State of New York without regard to the conflicts of law principles  thereof.  The section headings in this Agreement have been inserted as a matter of convenience of  reference and are not a part of this Agreement. Except as set forth below, no Claim may be  commenced, prosecuted or continued in any court other than the courts of the State of New York  located in the City and County of New York or in the United States District Court for the Southern  District of New York, which courts shall have jurisdiction over the adjudication of such matters,  and the Company consents to the jurisdiction of such courts and personal service with respect  thereto.  The Company hereby consents to personal jurisdiction, service and venue in any court in  which any Claim arising out of or in any way relating to this Agreement is brought by any third  party against any Purchaser or any Indemnified Party.  Each Purchaser and the Company (on its  behalf and, to the extent permitted by applicable law, on behalf of its stockholders and affiliates)  waive all right to trial by jury in any action, proceeding or counterclaim (whether based upon  contract, tort or otherwise) in any way arising out of or relating to this Agreement.  The Company  agrees that a final judgment in any such action, proceeding or counterclaim brought in any such  court shall be conclusive and binding upon the Company and may be enforced in any other courts  to the jurisdiction of which the Company is or may be subject, by suit upon such judgment. The  parties hereto agree that irreparable damage would occur in the event that any of the provisions of  this Agreement were not performed in accordance with their specific terms or were otherwise  breached. It is accordingly agreed that the parties shall be entitled to seek an injunction or  injunctions to prevent breaches of this Agreement and to enforce specifically the terms and  provisions of this Agreement, this being in addition to any other remedy to which such party is  entitled at law, in equity, in contract, in tort or otherwise.  





 






 25 12.7 Counterparts.  This Agreement may be executed in two or more counterparts, each  of which shall constitute an original, but all of which, when taken together, shall constitute but one  instrument, and shall become effective when one or more counterparts have been signed by each  party hereto and delivered to the other parties. In the event that any signature is delivered by  facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create  a valid and binding obligation of the party executing (or on whose behalf such signature is executed)  the same with the same force and effect as if such facsimile of “.pdf” signature were the original  thereof.  12.8 Successors and Assigns.  Except as otherwise expressly provided herein, the  provisions hereof shall inure to the benefit of, and be binding upon, the successors, assigns, heirs,  executors and administrators of the parties hereto.  12.9 Entire Agreement.  This Agreement and other documents delivered pursuant  hereto, including the exhibit and the Schedule of Exceptions, constitute the full and entire  understanding and agreement between the parties with regard to the subjects hereof and thereof.    12.10 Payment of Fees and Expenses.  Each of the Company and the Purchasers shall  bear its own expenses and legal fees incurred on its behalf with respect to this Agreement and the  transactions contemplated hereby, except that the Company will pay the reasonable and  documented legal fees and expenses of counsel to Wynnefield Capital, Inc. incurred with respect  to the negotiation, execution, delivery and performance of this Agreement, not to exceed $40,000.   If any action at law or in equity is necessary to enforce or interpret the terms of this Agreement, the  prevailing party shall be entitled to reasonable attorney’s fees, costs and necessary disbursements  in addition to any other relief to which such party may be entitled.  12.11 Survival.  The representations, warranties, covenants and agreements made in this  Agreement shall survive any investigation made by the Company or the Purchasers and the Closing.  12.12 Waiver of Potential Conflicts of Interest.  Each of the Purchasers and the  Company acknowledges that Latham & Watkins LLP (“Latham”) may have represented and may  currently represent certain of the Purchasers.  In the course of such representation, Latham may  have come into possession of confidential information relating to such Purchasers.  Each of the  Purchasers and the Company acknowledges that Latham is representing only the Company in this  transaction.  By executing this Agreement, each of the Purchasers and the Company hereby waives  any actual or potential conflict of interest which has or may arise as a result of Latham’s  representation of such persons and entities, and represents that it has had the opportunity to consult  with independent counsel concerning the giving of this waiver.  [Signature pages follow]  





 






SIGNATURE PAGES TO  SECURITIES PURCHASE AGREEMENT    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  by their duly authorized representatives as of the day and year first above written.   LIFECORE BIOMEDICAL, INC.        By:  /s/ James G. Hall   Name: James G. Hall  Title: Chief Executive Officer     





 






SIGNATURE PAGES TO  SECURITIES PURCHASE AGREEMENT    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  by their duly authorized representatives as of the day and year first above written.  PURCHASER:    Wynnefield Partners Small Cap Value, L.P.    By: Wynnefield Capital Management, LLC, its General  Partner    By: /s/ Nelson Obus   Name: Nelson Obus  Title: Co-Managing Member  Address: 450 Seventh Avenue, Suite 509  New York, New York 10123  Email: nobus@wynncap.com  with a copy (which shall not constitute notice) to:  Kane Kessler, P.C.  600 Third Avenue, 35th Floor  New York, NY 10022  Email: rlawrence@kanekessler.com   Attention: Robert L. Lawrence, Esq.     





 






SIGNATURE PAGES TO  SECURITIES PURCHASE AGREEMENT    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed  by their duly authorized representatives as of the day and year first above written.  PURCHASER:    Wynnefield Partners Small Cap Value, L.P. I    By: Wynnefield Capital Management, LLC, its General  Partner  By: /s/ Nelson Obus   Name: Nelson Obus  Title: Co-Managing Member  Address: 450 Seventh Avenue, Suite 509  New York, New York 10123  Email: nobus@wynncap.com  with a copy (which shall not constitute notice) to:  Kane Kessler, P.C.  600 Third Avenue, 35th Floor  New York, NY 10022  Email: rlawrence@kanekessler.com   Attention: Robert L. Lawrence, Esq.    





 






SIGNATURE PAGES TO  SECURITIES PURCHASE AGREEMENT    IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by  their duly authorized representatives as of the day and year first above written.    PURCHASER:    Wynnefield Small Cap Value Offshore Fund Ltd    By: Wynnefield Capital, Inc., its Investment Manager    By: /s/ Nelson Obus   Name: Nelson Obus  Title: Co-Managing Member  Address: 450 Seventh Avenue, Suite 509  New York, New York 10123  Email: nobus@wynncap.com  with a copy (which shall not constitute notice) to:  Kane Kessler, P.C.  600 Third Avenue, 35th Floor  New York, NY 10022  Email: rlawrence@kanekessler.com   Attention: Robert L. Lawrence, Esq.     





 






EXHIBIT A  SCHEDULE OF PURCHASERS    Name and Address  Number of  Shares  Aggregate  Purchase Price of  Shares  Wynnefield Partners Small Cap Value, L.P. I 345,260 $2,749,995.90  Wynnefield Partners Small Cap Value, L.P. 188,324 $1,500,000.66  Wynnefield Small Cap Value Offshore Fund Ltd 94,162 $750,000.33  TOTAL 627,746 $4,999,996.89