Unassociated Document

Exhibit 10.1


    


     

    AGREEMENT

     

    THIS
AGREEMENT (the “Agreement”) is made
as of December 30, 2008, by and between Kesselring Holding Corporation, a
Delaware corporation (the “Purchaser”), and
Vision Opportunity Master Fund, Ltd., a Cayman Islands exempted company (the
“Seller”).

     

    RECITALS

     

    WHEREAS,
pursuant to that certain Registration Rights Agreement between the Seller and
the Purchaser dated May 18, 2007 (the “Registration Rights Agreement”), the
Purchaser was obligated to file a registration statement (the “Registration
Statement”) registering shares of common stock held by the Seller underlying
Series A Preferred Stock, Series A Common Stock Purchase Warrant, Series B
Common Stock Purchase Warrant and Series J Common Stock Purchase Warrant and to
have such registration statement declared effective.

     

    WHEREAS,
the Registration Statement was never declared effective.

     

    WHEREAS,
the Seller desires to sell, and the Purchaser desires to purchase, the
securities set forth on Schedule A hereto (collectively, the “Securities”) and the
Seller additionally agrees to waive all rights and penalties under that certain
Registration Rights Agreement and to the termination of the Registration Rights
Agreement, for an aggregate purchase price of One Hundred ($100.00) Dollars (the
“Purchase
Price”).

     

    NOW
THEREFORE, in consideration of the terms and conditions contained in this
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties, intending to be
legally bound hereby, agree as follows:

     

    ARTICLE
1.

     

    SALE
AND TRANSFER OF SECURITIES; CLOSING

     

    Section
1.1 The Securities.  Subject
to the terms and conditions hereof, the Seller agrees to sell to the Purchaser,
and the Purchaser agrees to purchase, the Securities for the Purchase
Price.

     

    Section
1.2 Closing.  The
purchase and sale of the Securities (the “Closing”) will take
place on or before December 31, 2008 (the “Closing
Date”).  On the Closing Date, the Purchaser shall pay the
Purchase Price to Seller by wire transfer or certified check.

     

    Section
1.3 Delivery of
Securities.  Within fifteen (15) business days following the
Closing, the Seller will deliver to the Purchaser the Securities.

     

    Section
1.4 Registration Rights.
the Seller agrees to waive all rights and penalties under that certain
Registration Rights Agreement and to the termination of the Registration Rights
Agreement.

     

    Section
1.5 Participation
in Future Financing.  The first sentence of Section 4.9 of that
certain Securities Purchase Agreement dated May 19, 2007 entered by and between
the Purchase and Seller shall be deleted and replaced as follows:

     

    From the
date hereof until 12/31/2010, upon any financing by the Company of its Common
Stock or Common Stock Equivalents (a “Subsequent
Financing”), each Purchaser shall have the right to participate in such
Subsequent Financing.

     

    
      
         

      

      
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    ARTICLE
2.

     

    REPRESENTATIONS
AND WARRANTIES OF THE SELLER

     

    The
Seller represents and warrants to the Purchaser that the following statements
are true, correct and complete as of the date hereof:

     

    Section
2.1 Legal Capacity and
Authority.  The Seller has the right, power, authority and
capacity to execute and deliver this Agreement and to sell the Securities as
contemplated hereunder.

     

    Section
2.2 Ownership of
Securities.  The Seller owns, of record and beneficially, and
has good, valid and indefeasible title to the Securities free and clear of any
and all liens, claims and encumbrances, except for any rights of first refusal
or similar rights relating to the Securities that may be contained in any
shareholder agreements with the Issuer.

     

    Section
2.3 Authorization.  This
Agreement is a valid, legal and binding obligation of the Seller, enforceable
according to its terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other similar laws of general application relating
to or affecting the enforcement of creditor rights, (ii) laws and judicial
decisions regarding indemnification for violations of federal securities laws,
and (iii) the availability of specific performance or other equitable
remedies.

     

    Section
2.4 Brokers or
Finders.  The Seller has incurred no obligation or liability,
contingent or otherwise, for brokerage or finders’ fees or agents’ commissions
or other similar payment in connection with this Agreement.

     

    ARTICLE
3.

     

    REPRESENTATIONS
AND WARRANTIES OF THE PURCHASER

     

    The
Purchaser represents and warrants to the Seller that the following statements
are true, correct and complete as of the date hereof:

     

    Section
3.1 Legal Capacity and
Authority.  The Purchaser has the right, power, authority and
capacity to execute and deliver this Agreement and to purchase the Securities as
contemplated hereunder.

     

    Section
3.2 Authorization.  This
Agreement is a valid, legal and binding obligation of the Purchaser, enforceable
according to its terms, except as may be limited by (i) applicable bankruptcy,
insolvency, reorganization or other similar laws of general application relating
to or affecting the enforcement of creditor rights, (ii) laws and judicial
decisions regarding indemnification for violations of federal securities laws,
and (iii) the availability of specific performance or other equitable
remedies.

     

    
      
         

      

      
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    Section
3.3 Brokers or
Finders.  The Purchaser has incurred no obligation or
liability, contingent or otherwise, for brokerage or finders’ fees or agents’
commissions or other similar payment in connection with this
Agreement.

     

    ARTICLE
4.

     

    MISCELLANEOUS

     

    Section
4.1 Modification of Agreement;
Sale of Interest.  This Agreement
may not be modified, altered or amended, except by an agreement in writing
signed by the Purchaser and the Seller.  Without the prior written
consent of the other party, which consent shall not be unreasonably withheld, no
party hereto may sell, assign or transfer this Agreement, any rights, titles,
interests, remedies, powers, obligations and/or duties hereunder, including by
operation of law.

     

    Section
4.2 Expenses.  Each
party shall bear its own expenses in connection with the transactions
contemplated by this Agreement.

     

    Section
4.3 Parties.  This
Agreement shall be binding upon and inure to the benefit of the successors and
permitted assigns of the Seller and the Purchaser.

     

    Section
4.4 Entire
Agreement.  This Agreement constitutes the entire agreement of
the parties.

     

    Section
4.5 Governing Law. This agreement shall be
governed by and construed under the laws of New York without giving effect to
any choice or conflict of law provision or rule.

     

    Section
4.6 Jurisdiction; Service of
Process.  Any action or proceeding seeking to enforce any
provision of, or based on any right arising out of, this Agreement may be
brought against any of the parties only in the courts of New
York.

     

    Section
4.7 Counterparts.  This
Agreement may be executed in a number of identical counterparts, each of which,
for all purposes, is to be deemed an original, and all of which collectively
constitute one agreement, but in making proof of this Agreement, it shall not be
necessary to produce or account for more than one such counterpart.  A
facsimile or photocopy of an executed counterpart of this Agreement shall be
sufficient to bind the party or parties whose signature(s) appear
thereon.

     

    Section
4.8 Further Assurances.
Each party will execute and deliver such further agreements, documents and
instruments and take such further action as may be reasonably requested by the
other party to carry out the provisions and purposes of this
Agreement.

     

    Section
4.9 Termination;
Survival.  The provisions of this Agreement, including without
limitation the representations, warranties and covenants of the parties, shall
survive the Closing.

    


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    IN
WITNESS WHEREOF, this Agreement has been duly executed and delivered as of the
day and year first written above.

     

     

    
      
        	 	SELLER:
      VISION OPPORTUNITY MASTER FUND, LTD.	 
	 	 	 	 
	
                 

              	
                By:
      

              	/s/ Adam
      Benowitz	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 


      

    

     

     

    
      	 	      
              PURCHASER:
      KESSELRING HOLDING CORPORATION

            	 
	 	 	 	 
	
               

            	
              By:
      

            	/s/ Kenneth
      Craig	 
	 	 	Name:	 
	 	 	Title:	 
	 	 	 	 


    

     

     

     

     

     

     

     

     

     

     

    
 

     

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