Unassociated Document


    Exhibit
      4.1

     

    EXECUTION
      COPY

     

    PURCHASE
      AGREEMENT

     

    This
      Purchase Agreement (together with the schedules hereto, this “Agreement”)
      is
      dated as of June 7, 2007, among GoFish Corporation, a Nevada corporation (the
      “Company”),
      and
      the investors identified on the signature pages hereto (each an “Investor”
      and,
      collectively, the “Investors”).

     

    WHEREAS,
      subject to the terms and conditions set forth in this Agreement, the Company
      desires to borrow certain sums from each of the Investors and, in consideration
      thereof issue certain convertible notes and warrants to each of the Investors,
      and each Investor, severally and not jointly, desires to make a loan to the
      Company and accept such notes and warrants from the Company, all pursuant to
      the
      terms set forth herein.

     

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

     

    ARTICLE
      I.

    DEFINITIONS

     

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

     

    “Action”
      means
      any action, claim, suit, inquiry, notice of violation, proceeding (including,
      without limitation, any investigation or partial proceeding such as a
      deposition) or investigation pending or threatened in writing against or
      affecting the Company, any Subsidiary or any of their respective properties
      before or by any court, arbitrator, governmental or administrative agency,
      regulatory authority (federal, state, provincial, county, local or foreign),
      stock market, stock exchange or trading facility.

     

    “Affiliate”
      means
      any Person that, directly or indirectly through one or more intermediaries,
      controls or is controlled by or is under common control with a Person, as such
      terms are used in and construed under Rule 144.

     

    “Bankruptcy
      Event”
      means
      any of the following events: (a) the Company or any Subsidiary commences a
      proceeding under any bankruptcy, reorganization, arrangement, adjustment of
      debt, relief of debtors, dissolution, insolvency or liquidation or similar
      law
      of any jurisdiction relating to the Company or any Subsidiary thereof; (b)
      there
      is commenced against the Company or any Subsidiary any such case or proceeding
      that is not dismissed within 60 days after commencement; (c) the Company or
      any
      Subsidiary is adjudicated by a court of competent jurisdiction insolvent or
      bankrupt or any order of relief or other order approving any such case or
      proceeding is entered; (d) the Company or any Subsidiary suffers any appointment
      of any custodian or the like for it or any substantial part of its property
      that
      is not discharged or stayed within 60 days; (e) under applicable law the
      Company or any Subsidiary makes a general assignment for the benefit of
      creditors; (f) the Company or any Subsidiary fails to pay, or states that it
      is
      unable to pay or is unable to pay, its debts generally as they become due;
      (g)
      the Company or any Subsidiary calls a meeting of its creditors with a view
      to
      arranging a composition, adjustment or restructuring of its debts; or (h) the
      Company or any Subsidiary, by any act or failure to act, expressly indicates
      its
      consent to, approval of or acquiescence in any of the foregoing or takes any
      corporate or other action for the purpose of effecting any of the
      foregoing.

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

     

    “Benefit
      Arrangement”
      means at
      any time an employee benefit plan within the meaning of Section 3(3) of ERISA
      which is not a Plan or Multiemployer Plan and which is maintained or otherwise
      contributed by the Company.

     

    “Benefit
      Plans”
      has the
      meaning set forth in Section 3.1(aa)(ii).

     

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

     

    “Closing”
      means
      the closing of the purchase and sale of Notes and Warrants contemplated by
      Section 2.1.

     

    “Closing
      Date” means
      the
      Business Day immediately following the date on which all of the conditions
      set
      forth in Section 2.1(d) and 2.1(e) have been satisfied or waived, or such other
      date as the parties may agree.

     

    “Code”
      means
      the Internal Revenue Code of 1986, as amended.

     

    “Commission”
      means
      the Securities and Exchange Commission or its staff, as the context
      requires.

     

    “Common
      Stock”
      means
      the common stock of the Company, $0.001 par value per share, and any securities
      into which such common stock may hereafter be reclassified. 

     

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

     

    “Company
      Counsel”
      means
      Morrison & Foerster LLP.

     

    “Contingent
      Liability”
      means,
      as to any Person, any obligation, contingent or otherwise, of such Person
      guaranteeing or having the economic effect of guaranteeing or agreeing to pay
      or
      become responsible for any Debt or obligation of any other Person in any manner,
      whether directly or indirectly, including without limitation any obligation
      of
      such Person, direct or indirect, (a) to purchase or pay (or advance or supply
      funds for the purchase or payment of) such Debt or to purchase (or to advance
      or
      supply funds for the purchase of) any security for the payment of such Debt,
      (b)
      to purchase property or services for the purpose of assuring the owner of such
      Debt of its payment, or (c) to maintain the solvency, working capital, equity,
      cash flow, fixed charge or other coverage ratio, or any other financial
      condition of the primary obligor so as to enable the primary obligor to pay
      any
      Debt or to comply with any agreement relating to any Debt or
      obligation.

     

    
      
        
        

      

      
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    “Debt”
      of any
      Person means at any date, without duplication, (i) all obligations of such
      Person for borrowed money, (ii) all obligations of such Person evidenced by
      bonds, debentures, notes, or other similar instruments issued by such Person,
      (iii) all obligations of such Person as lessee which (y) are capitalized in
      accordance with GAAP or (z) arise pursuant to sale-leaseback transactions,
      (iv)
      all reimbursement obligations of such Person in respect of letters of credit
      or
      other similar instruments, (v) all Debt of others secured by a Lien on any
      asset
      of such Person, whether or not such Debt is otherwise an obligation of such
      Person and (vi) all Debt of others guaranteed by such Person.

     

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

     

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

     

    “Eligible
      Market”
      means
      whichever of the New York Stock Exchange, the American Stock Exchange, the
      NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ Capital Market
      or the OTC Bulletin Board on which the Common Stock is listed or quoted for
      trading on the date in question; provided,
      however,
      that
      following the listing of the Common Stock on an Eligible Market other than
      the
      OTC Bulletin Board, if applicable, “Eligible
      Market”
shall
      mean whichever of the New York Stock Exchange, the American Stock Exchange,
      the
      NASDAQ Global Select Market, the NASDAQ Global Market or the NASDAQ Capital
      Market on which the Common Stock is listed or quoted for trading on the date
      in
      question.

     

    “ERISA”
      means
      the Employee Retirement Income Security Act of 1974, as amended, or any
      successor statute.

     

    “ERISA
      Group”
      means
      the Company and each Subsidiary and all members of a controlled group of
      corporations and all trades or businesses (whether or not incorporated) under
      common control which, together with the Company or any Subsidiary, is treated
      as
      a single employer under the Code.

     

    “Exchange
      Act”
      means
      the Securities Exchange Act of 1934, as amended.

     

    “GAAP”
      means
      U.S. generally accepted accounting principles.

     

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

     

    
      
        
        

      

      
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    “Investment
      Amount”
      means,
      with respect to each Investor, the investment amount indicated below such
      Investor’s signature page to this Agreement.

     

    “Investor
      Deliverables”
      has the
      meaning set forth in Section 2.1(c).

     

    “Investor
      Party”
      has the
      meaning set forth in Section 4.12.

     

    “Lien”
      means
      any lien, charge, encumbrance, security interest, right of first refusal or
      other restrictions of any kind, other than restrictions on the transfer of
      securities arising under federal or state securities laws and
      regulations.

     

    “Losses”
      has the
      meaning set forth in Section 4.12.

     

    “Material
      Adverse Effect”
      means
      any of (i) a material and adverse effect on the legality, validity or
      enforceability of any Transaction Document, (ii) a material and adverse effect
      on the results of operations, assets, prospects, business or condition
      (financial or otherwise) of the Company and the Subsidiaries, taken as a whole
      or (iii) an adverse impairment to the Company's ability to timely perform its
      obligations under any Transaction Document.

     

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

     

    “Notes”
      means
      the
      6% senior convertible promissory notes in the aggregate principal amount of
      up
      to $17,000,000 issuable by the Company to the Investors at Closing in the Form
      of Exhibit
      A,
      due on
      the three year anniversary of the Closing Date.

     

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

     

    “PBGC”
      means
      the Pension Benefit Guarantee Corporation or any entity succeeding to any or
      all
      of its functions under ERISA.

     

    “Permitted
      Indebtedness”
      has the
      meaning set forth in Section 5.3.

     

    “Permitted
      Liens”
      means:
      (a) Liens for taxes, assessments or governmental charges not delinquent or
      being
      contested in good faith and by appropriate proceedings and for which adequate
      reserves in accordance with GAAP are maintained on the books of the Company
      or
      the applicable Subsidiary; (b) Liens arising out of deposits in connection
      with
      workers’ compensation, unemployment insurance, old age pensions or other social
      security or retirement benefits legislation; (c) deposits or pledges to secure
      bids, tenders, contracts (other than contracts for the payment of money),
      leases, statutory obligations, surety and appeal bonds, and other obligations
      of
      like nature arising in the ordinary course of business of the Company or a
      Subsidiary; (d) Liens imposed by law, such as mechanics’, workers’,
      materialmens’, carriers’ or other like liens arising in the ordinary course of
      business of the Company or a Subsidiary which secure the payment of obligations
      which are not past due or which are being diligently contested in good faith
      by
      appropriate proceedings and for which adequate reserves in accordance with
      GAAP
      are maintained on the books of the Company or the applicable Subsidiary; (e)
      Liens existing on the Closing Date, and specified on Schedule 3.1(o); (f)
      purchase money security interests or Liens for the purchase of fixed assets
      to
      be used in the business of the Company or a Subsidiary, securing solely the
      fixed assets so purchased and the proceeds thereof; (g) capitalized leases
      which
      do not violate any provision of this Agreement; (h) Liens of commercial
      depository institutions, arising in the ordinary course of business,
      constituting a statutory or common law right of setoff against amounts on
      deposit with such institution; and (i) rights of way, zoning restrictions,
      easements and similar encumbrances affecting the Company’s real property which
      do not materially interfere with the use of such property.

     

    
      
        
        

      

      
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    “Person”
      means an
      individual or corporation, partnership, trust, incorporated or unincorporated
      association, joint venture, limited liability company, joint stock company,
      government (or an agency or subdivision thereof) or other entity of any
      kind.

     

    “Plan”
      means at
      any time an employee pension plan benefit plan which is covered by Title IV
      of
      ERISA or subject to the minimum funding standards under the Code and either
      (i)
      is maintained, or contributed to, by any member of the ERISA group for employees
      of any member of the ERISA group or (ii) has at any time within the preceding
      five years been maintained, or contributed to, by any Person which was at such
      time a member of the ERISA Group for employees of any Person which was at such
      time a member of the ERISA group.

     

    “Registration
      Rights Agreement”
      means
      the Registration Rights Agreement, dated as of the date of this Agreement,
      among
      the Company and the Investors, in the form of Exhibit
      B
      hereto.

     

    “Registration
      Statement”
      means
      one or more registration statements meeting the requirements set forth in the
      Registration Rights Agreement and covering the resale by the Investors of the
      Underlying Shares and Warrant Shares.

     

    “Required
      Investors”
      means
      one or more Investors representing greater than 75% of the aggregate principal
      amount of all Notes then outstanding.

     

    “Required
      Minimum”
      means,
      as of any date, the maximum aggregate number of shares of Common Stock then
      issued or potentially issuable in the future pursuant to the Transaction
      Documents that the Company is obligated to issue, whether contingently or
      otherwise, including, without limitation, any Underlying Shares issuable upon
      conversion in full of all Notes and Warrant Shares issuable upon exercise of
      all
      Warrants (without regard to any otherwise applicable conversion or exercise
      restrictions contained therein) (assuming for such purpose that the Conversion
      Price (as defined in the Notes) and the Exercise Price (as defined in the
      Warrants) equals 50% of the Conversion Price and Exercise Price in effect on
      the
      Closing Date).

     

    “Restricted
      Payment”
      means,
      with respect to any Person, (a) any direct or indirect distribution, dividend
      or
      other payment on account of any equity interest in, or shares of capital stock
      or other securities of, such Person and (b) any management, consulting or other
      similar fees, or any interest thereon, payable by such Person to any affiliate
      of such Person (other than the Company), or to any other Person other than
      an
      unrelated third party; provided,
      however, that Restricted Payments shall not include any arms length consulting
      agreements with consultants of the Company which are approved by the Board
      of
      Directors of the Company.

     

    
      
        
        

      

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

     

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

     

    “Securities”
      means
      the
      Notes, the Warrants, the Underlying Shares and the Warrant Shares.

     

    “Securities
      Act”
      means
      the Securities Act of 1933, as amended.

     

    “Short
      Sales”
      include,
      without limitation, all “short sales” as defined in Rule 200 promulgated under
      Regulation SHO under the Exchange Act and all types of direct and indirect
      stock
      pledges, forward sale contracts, options, puts, calls, swaps and similar
      arrangements (including on a total return basis), and sales and other
      transactions through non-US broker dealers or foreign regulated
      brokers.

     

    “Strategic
      Transaction”
      means a
      transaction or relationship in which the Company issues shares of Common Stock
      or other securities of the Company to, or incurs Indebtedness hereinafter in
      the
      event of an acquisition of, a Person which is, itself or through its
      subsidiaries, an operating company in a business synergistic with the business
      of the Company, or to the beneficial owners of such a Person in connection
      with
      the acquisition by the Company of all or a controlling interest therein or
      of
      all or substantially all of the assets of such Person, and in which the Company
      expects to receive business benefits in addition to the investment of funds,
      but
      shall not include a transaction in which the Company is issuing securities
      primarily for the purpose of raising capital or to an entity whose primary
      business is investing in securities.

     

    “Subsidiary”
      means
      any subsidiary of the Company included in the SEC Reports.

     

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

     

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

     

    
      
        
        

      

      
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    “Transaction
      Documents”
      means
      this Agreement, the Notes, the Registration Rights Agreement, the Warrants,
      and
      any other agreements executed in connection with the transactions contemplated
      hereunder.

     

    “Underlying
      Shares”
      means
      the shares of Common Stock issuable upon conversion of the Notes and payment
      of
      interest thereunder.

     

    “VWAP”
means,
      for any date, the price determined by the first of the following clauses that
      applies: (a) if the Common Stock is then listed or quoted on a Trading Market,
      the daily volume weighted average price of the Common Stock for such date (or
      the nearest preceding date) on the Trading Market on which the Common Stock
      is
      then listed or quoted as reported by Bloomberg L.P. (based on a Trading Day
      from
      9:30 a.m. New York City time to 4:02 p.m. New York City time); (b) if the OTC
      Bulletin Board is not a Trading Market, the volume weighted average price of
      the
      Common Stock for such date (or the nearest preceding date) on the OTC Bulletin
      Board; (c) if the Common Stock is not then listed or quoted on the OTC Bulletin
      Board and if prices for the Common Stock are then reported in the “Pink Sheets”
published by Pink Sheets, LLC (or a similar organization or agency succeeding
      to
      its functions of reporting prices), the most recent bid price per share of
      the
      Common Stock so reported; or (d) in all other cases, the fair market value
      of a share of Common Stock as determined by an independent appraiser selected
      in
      good faith by the Investors of a majority in interest of the Securities then
      outstanding and reasonably acceptable to the Company, the fees and expenses
      of
      which shall be paid by the Company.

     

    “Warrants”
      means
      the Common Stock purchase warrants, in the form of Exhibit
      C,
      issuable to each Investor at the Closing.

     

    “Warrant
      Shares” means
      the
      shares of Common Stock issuable upon exercise of the Warrants.

     

    ARTICLE
      II.

    PURCHASE
      AND SALE

     

    2.1  Closing.

     

    (a)  Subject
      to the terms and conditions set forth in this Agreement, at the Closing, the
      Company shall issue and sell to each Investor, and each Investor shall,
      severally and not jointly, purchase from the Company, the Notes and the Warrants
      representing such Investor’s Investment Amount. The Closing shall take place at
      the offices of Bryan Cave LLP, 1290 Avenue of the Americas, New York, NY 10104
      at 4:30 p.m. (New York City time) on the Closing Date or at such other location
      or time as the parties may agree.

     

    (b)  At
      the
      Closing, the Company shall deliver or cause to be delivered to each Investor
      the
      following (the “Company
      Deliverables”):

     

    
      
        
        

      

      
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    (i)  Notes
      in
      the aggregate principal amount of the Investment Amount indicated below such
      Investor’s name on its signature page of this Agreement, registered in the name
      of such Investor;

     

    (ii)  Warrants,
      registered in the name of such Investor, pursuant to which such Investor shall
      have the right to acquire the number of shares of Common Stock equal to 60%
      of
      the Underlying Shares issuable upon an assumed conversion of the Notes (at
      an
      assumed conversion price of $1.60) issuable to such Investor in accordance
      with
      Section 2.1(b)(i) (without regard to any conversion restrictions contained
      thereunder);

     

    (iii)  the
      legal
      opinion of Company Counsel, in the form of Exhibit
      D,
      addressed to the Investors;

     

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

     

    (v)  a
      certificate executed by a duly authorized officer of the Company certifying
      that
      (i) all representations and warranties made by the Company in this Agreement
      and
      information furnished by the Company in any schedules to this Agreement, are
      true and correct in all material respects as of the Closing Date, (ii) all
      covenants, agreements and obligations required by this Agreement to be performed
      or complied with by the Company, prior to or at the Closing, have been performed
      or complied with in all material respects and (iii) the items referenced in
      Sections 2.1(d)(iv)-(vi) are true and correct as of the Closing
      Date.

     

    (c)  At
      the
      Closing, each Investor shall deliver or cause to be delivered to the Company
      the
      following (the “Investor
      Deliverables”):

     

    (i)  the
      Investment Amount indicated below such Investor’s name on its signature page of
      this Agreement, in United States dollars and in immediately available funds,
      by
      wire transfer to an account designated in writing by the Company for such
      purpose; and

     

    (ii)  the
      Registration Rights Agreement, duly executed by such Investor.

     

    (d)  Conditions
      Precedent to the Obligations of an Investor to Purchase Notes and
      Warrants.
      The
      obligation of each Investor to acquire Notes and Warrants and make loans at
      the
      Closing is subject to the satisfaction or waiver by such Investor, at or before
      the Closing, of each of the following conditions:

     

    (i)  Representations
      and Warranties.
      The
      representations and warranties of the Company contained in the Transaction
      Documents shall be true and correct as of the date when made and as of the
      Closing Date as though made on and as of such date;

     

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

     

    
      
        
        

      

      
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    (iii)  Officer’s
      Certificate.
      The
      officer’s certificate described in Section 2.1(b)(v) hereof shall have been
      delivered;

     

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

     

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

     

    (vi)  No
      Suspensions of Trading in Common Stock; Listing.
      Trading
      in the Common Stock shall not have been suspended by the Commission or any
      Trading Market (except for any suspensions of trading of not more than one
      Trading Day solely to permit dissemination of material information regarding
      the
      Company) at any time since the date of execution of this Agreement, and the
      Common Stock shall have been at all times since such date listed or quoted
      for
      trading on an Eligible Market; and

     

    (vii)  Company
      Deliverables.
      The
      Company shall have delivered the Company Deliverables in accordance with Section
      2.1(b).

     

    (e)  Conditions
      Precedent to the Obligations of the Company to Sell Notes and
      Warrants.
      The
      obligation of the Company to sell Notes and Warrants at the Closing is subject
      to the satisfaction or waiver by the Company, at or before the Closing, of
      each
      of the following conditions:

     

    (i)  Representations
      and Warranties.
      The
      representations and warranties of each Investor contained herein shall be true
      and correct as of the date when made and as of the Closing Date as though made
      on and as of such date;

     

    (ii)  Performance.
      Each
      Investor shall have performed, satisfied and complied in all material respects
      with all covenants, agreements and conditions required by the Transaction
      Documents to be performed, satisfied or complied with by such Investor at or
      prior to the Closing;

     

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

     

    
      
        
        

      

      
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    (iv)  Investors
      Deliverables.
      Each
      Investor shall have delivered its Investor Deliverables in accordance with
      Section 2.1(c).

     

    ARTICLE
      III.

    REPRESENTATIONS
      AND WARRANTIES

     

    3.1  Representations
      and Warranties of the Company.
      The
      Company hereby makes the following representations and warranties to each
      Investor:

     

    (a)  Subsidiaries.
      The
      Company has no direct or indirect Subsidiaries other than as specified in the
      SEC Reports. The Company owns, directly or indirectly, all of the capital stock
      of each Subsidiary free and clear of any and all Liens (other than Permitted
      Liens), and all the issued and outstanding shares of capital stock of each
      Subsidiary are validly issued and are fully paid, non-assessable and free of
      preemptive and similar rights.

     

    (b)  Organization
      and Qualification.
      The
      Company and each Subsidiary are duly incorporated or otherwise organized,
      validly existing and in good standing under the laws of the jurisdiction of
      its
      incorporation or organization (as applicable), with the requisite corporate
      power and authority to own and use its properties and assets and to carry on
      its
      business as currently conducted. Neither the Company nor any Subsidiary is
      in
      violation of any of the provisions of its respective certificate or articles
      of
      incorporation, bylaws or other organizational or charter documents. The Company
      and each Subsidiary are duly qualified to conduct its respective businesses
      and
      are in good standing as a foreign corporation or other entity in each
      jurisdiction in which the nature of the business conducted or property owned
      by
      it makes such qualification necessary, except where the failure to be so
      qualified or in good standing, as the case may be, could not, individually
      or in
      the aggregate, have or reasonably be expected to result in a Material Adverse
      Effect.

     

    (c)  Authorization;
      Enforcement.
      The
      Company has the requisite corporate power and authority to enter into and to
      consummate the transactions contemplated by each of the Transaction Documents
      and otherwise to carry out its obligations thereunder. The execution and
      delivery of each of the Transaction Documents by the Company and the
      consummation by it of the transactions contemplated thereby have been duly
      authorized by all necessary corporate action on the part of the Company and
      no
      further corporate action is required by the Company to authorize the execution,
      delivery and performance of the Transaction Documents by the Company. Each
      Transaction Document has been (or upon delivery will have been) duly executed
      by
      the Company and, when delivered in accordance with the terms hereof, will
      constitute the valid and binding obligation of the Company enforceable against
      the Company in accordance with its terms, except as such enforceability may
      be
      limited by applicable bankruptcy, insolvency, reorganization, moratorium,
      liquidation or similar laws relating to, or affecting generally the enforcement
      of, creditors’ rights and remedies or by other equitable principles of general
      application.

     

    
      
        
        

      

      
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    (d)  No
      Conflicts.
      The
      execution, delivery and performance of the Transaction Documents by the Company
      and the consummation by the Company of the transactions contemplated thereby
      do
      not and will not (i) conflict with or violate any provision of the Company's
      or
      any Subsidiary's certificate or articles of incorporation, bylaws or other
      organizational or charter documents, or (ii) conflict with, or constitute a
      default (or an event that with notice or lapse of time or both would become
      a
      default) under, or give to others any rights of termination, amendment,
      acceleration or cancellation (with or without notice, lapse of time or both)
      of,
      any agreement, credit facility, debt or other instrument (evidencing a Company
      or Subsidiary debt or otherwise) or other agreement to which the Company or
      any
      Subsidiary is a party or by which any property or asset of the Company or any
      Subsidiary is bound or affected, or (iii) result in a violation of any law,
      rule, regulation, order, judgment, injunction, decree or other restriction
      of
      any court or governmental authority to which the Company or a Subsidiary is
      subject (including federal and state securities laws and regulations), or by
      which any property or asset of the Company or a Subsidiary is bound or affected;
      except in the case of each of clauses (ii) and (iii), such as could not,
      individually or in the aggregate, have or reasonably be expected to result
      in a
      Material Adverse Effect. Payments of cash on account of principal of or interest
      under the Notes, upon any Event of Default under the Notes, as a result of
      liquidated damages under any Transaction Document or upon a Buy-In under and
      as
      such term is defined in a Note or Warrant will not require the consent of,
      any
      payment to, or the springing of any Lien in favor of any lender to or creditor
      of the Company or any Subsidiary (under a credit facility, loan agreement or
      otherwise) and will not result in a default under any such credit facilities,
      loans or other agreements.

     

    (e)  Filings,
      Consents and Approvals.
      The
      Company is not required to obtain any consent, waiver, authorization or order
      of, give any notice to, or make any filing or registration with, any court
      or
      other federal, state, local or other governmental authority or other Person
      in
      connection with the execution, delivery and performance by the Company of the
      Transaction Documents, other than (i) the filing with the Commission of one
      or
      more Registration Statements (and any related amendments, or prospectus
      supplements, thereto) in accordance with the requirements Registration Rights
      Agreement, (ii) filings required by state securities laws, (iii) the filing
      of a
      Notice of Sale of Securities on Form D with the Commission under Regulation
      D of
      the Securities Act (iv) the filings required in accordance with Sections 4.2
      and
      4.9 (and any related amendments, or prospectus supplements, to the Company’s
      outstanding registration statement filed on Form SB-2 (File No. 333-142460)),
      and (iv) those that have been made or obtained prior to the date of this
      Agreement.

     

    (f)  Issuance
      of the Securities.
      The
      Securities have been duly authorized and, when issued and paid for in accordance
      with the Transaction Documents, will be duly
      and
      validly issued, fully paid and nonassessable,
      free
      and clear of all Liens. The Company has reserved from its duly authorized
      capital stock an aggregate of 35,000,000 shares of Common Stock (as such number
      may be adjusted pursuant to the terms of the Notes and the Warrants) solely
      for
      the purpose of issuance upon conversion of the Notes and upon exercise of the
      Warrants. All securities previously issued by the Company were duly and validly
      issued, fully paid and nonassessable when issued, either pursuant to a valid
      registration statement or private placement transaction.

     

    (g)  Capitalization.
      The
      number of shares and type of all authorized, issued and outstanding capital
      stock of the Company, and all shares of Common Stock reserved for issuance
      under
      the Company’s various option and incentive plans, is specified in Schedule
      3.1(g).
      Except
      as specified in Schedule
      3.1(g),
      no
      securities of the Company are entitled to preemptive or similar rights, and
      no
      Person has any right of first refusal, preemptive right, right of participation,
      or any similar right to participate in the transactions contemplated by the
      Transaction Documents. Except as specified in Schedule
      3.1(g),
      there
      are no outstanding options, warrants, scrip rights to subscribe to, calls or
      commitments of any character whatsoever relating to, or securities, rights
      or
      obligations convertible into or exchangeable for, or giving any Person any
      right
      to subscribe for or acquire, any shares of Common Stock, or contracts,
      commitments, or arrangements by which the Company or any Subsidiary is or may
      become bound to issue additional shares of Common Stock, or securities or rights
      convertible or exchangeable into shares of Common Stock. The issue and sale
      of
      the Securities will not, immediately or with the passage of time, obligate
      the
      Company to issue shares of Common Stock or other securities to any Person (other
      than the Investors) and will not result in a right of any holder of Company
      securities to adjust the exercise, conversion, exchange or reset price under
      such securities.

     

    
      
        
        

      

      
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    (h)  SEC
      Reports; Financial Statements.
      The
      Company has filed all reports, forms or other information required to be filed
      by it under the Securities Act and the Exchange Act, including pursuant to
      Section 13(a) or 15(d) thereof, for the twelve months preceding the date hereof
      (or such shorter period as the Company was required by law to file such reports)
      (the foregoing materials and all exhibits included therein and financial
      statements, notes and schedules thereto and documents incorporated by reference
      therein being collectively referred to herein as the “SEC
      Reports”
      and,
      together with the Schedules to this Agreement (if any), the “Disclosure
      Materials”)
      on a
      timely basis or has timely filed a valid extension of such time of filing and
      has filed any such SEC Reports prior to the expiration of any such extension.
      As
      of their respective dates, the SEC Reports complied in all material respects
      with the requirements of the Securities Act and the Exchange Act and the rules
      and regulations of the Commission promulgated thereunder, and none of the SEC
      Reports, when filed, contained any untrue statement of a material fact or
      omitted to state a material fact required to be stated therein or necessary
      in
      order to make the statements therein, in light of the circumstances under which
      they were made, not misleading. The financial statements of the Company included
      in the SEC Reports comply in all material respects with applicable accounting
      requirements and the rules and regulations of the Commission with respect
      thereto as in effect at the time of filing (or amendment thereto, as
      applicable). Such financial statements have been prepared in accordance with
      GAAP applied on a consistent basis during the periods involved, except as may
      be
      otherwise specified in such financial statements or the notes thereto, and
      fairly present in all material respects the financial position of the Company
      and its consolidated Subsidiaries as of and for the dates thereof and the
      results of operations and cash flows for the periods then ended, subject, in
      the
      case of unaudited statements, to normal, immaterial, year-end audit adjustments.
      For purposes of this Agreement, any reports, forms or other information provided
      to the Commission whether by filing, furnishing or otherwise providing, is
      included in the term “filed” (or any derivations thereof).

     

    (i)  Press
      Releases.
      The
      press releases disseminated by the Company since October 27, 2006 taken as
      a
      whole do not contain any untrue statement of a material fact or omit to state
      a
      material fact required to be stated therein or necessary in order to make the
      statements therein, in light of the circumstances under which they were made
      and
      when made, not misleading.

     

    
      
        
        

      

      
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    (j)  Material
      Changes.
      Since
      the date of the latest audited financial statements included within the SEC
      Reports, except as specifically disclosed in the SEC Reports, (i) there has
      been
      no event, occurrence or development that has had or that could reasonably be
      expected to result in a Material Adverse Effect, (ii) the Company has not
      incurred any liabilities (contingent or otherwise) other than (A) trade
      payables, accrued expenses and other liabilities incurred in the ordinary course
      of business consistent with past practice and (B) liabilities (not to exceed
      $100,000) not required to be reflected in the Company's financial statements
      pursuant to GAAP or required to be disclosed in filings made with the
      Commission, (iii) the Company has not altered its method of accounting or the
      identity of its auditors, (iv) the Company has not declared or made any dividend
      or distribution of cash or other property to its stockholders or purchased,
      redeemed or made any agreements to purchase or redeem any shares of its capital
      stock, and (v) the Company has not issued any equity securities to any officer,
      director or Affiliate, except pursuant to existing Company stock option plans
      and consistent with past practice. The Company does not have pending before
      the
      Commission any request for confidential treatment of information.

     

    (k)  Litigation.
      There
      is no Action which (i) adversely affects or challenges the legality, validity
      or
      enforceability of any of the Transaction Documents or the Securities or (ii)
      except as specifically disclosed in the SEC Reports, would, if there were an
      unfavorable decision, individually or in the aggregate, have or reasonably
      be
      expected to result in a Material Adverse Effect. Neither the Company nor any
      Subsidiary, nor any director or officer thereof (in his or her capacity as
      such), is or has been the subject of any Action involving a claim of violation
      of or liability under federal or state securities laws or a claim of breach
      of
      fiduciary duty, except as specifically disclosed in the SEC Reports. Except
      as
      specifically disclosed in the SEC Reports, there has not been, and to the
      knowledge of the Company, there is not pending any investigation by the
      Commission involving the Company or any current or former director or officer
      or
      agent of the Company (in his or her capacity as such). The Commission has not
      issued any stop order or other order suspending the effectiveness of any
      registration statement filed by the Company or any Subsidiary under the Exchange
      Act or the Securities Act, nor has the Commission communicated to the Company
      that it has called into question the validity of any shares previously issued
      by
      the Company.

     

    (l)  Labor
      Relations.
      No
      material labor dispute exists or, to the knowledge of the Company, is imminent
      with respect to any of the employees of the Company.

     

    (m)  Compliance.
      Neither
      the Company nor any Subsidiary (i) is in default under or in violation of (and
      no event has occurred that has not been waived that, with notice or lapse of
      time or both, would result in a default by the Company or any Subsidiary under),
      nor has the Company or any Subsidiary received notice of a claim that it is
      in
      default under or that it is in violation of, any indenture, loan or credit
      agreement or any other agreement or instrument to which it is a party or by
      which it or any of its properties is bound (whether or not such default or
      violation has been waived), (ii) is in violation of any order of any court,
      arbitrator or governmental body, or (iii) is or has been in violation of any
      statute, rule or regulation of any governmental authority, including without
      limitation all foreign, federal, state and local laws relating to taxes,
      environmental protection, occupational health and safety, product quality and
      safety and employment and labor matters, except in each case as could not,
      individually or in the aggregate, have or reasonably be expected to result
      in a
      Material Adverse Effect. The Company is in compliance with all effective
      requirements of the Sarbanes-Oxley Act of 2002, as amended, and the rules and
      regulations thereunder, that are applicable to it, except where such
      noncompliance could not have or reasonably be expected to result in a Material
      Adverse Effect. 

     

    
      
        
        

      

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

     

    (o)  Title
      to Assets.
      The
      Company and the Subsidiaries have good and marketable title in fee simple to
      all
      real property owned by them that is material to their respective businesses
      and
      good and valid title in all personal property owned by them that is material
      to
      their respective businesses, in each case free and clear of all Liens, except
      for Permitted Liens and Liens that do not materially affect the value of such
      property and do not materially interfere with the use made and proposed to
      be
      made of such property by the Company and the Subsidiaries. Any real property
      and
      facilities held under lease by the Company and the Subsidiaries are held by
      them
      under valid, subsisting and enforceable leases of which the Company and the
      Subsidiaries are in compliance, except as could not, individually or in the
      aggregate, have or reasonably be expected to result in a Material Adverse
      Effect.

     

    (p)  Patents
      and Trademarks.
      The
      Company and the Subsidiaries have, or have rights to use, all patents, patent
      applications, trademarks, trademark applications, service marks, trade names,
      copyrights, licenses and other similar rights that are necessary or material
      for
      use in connection with their respective businesses as described in the SEC
      Reports and which the failure to so have could, individually or in the
      aggregate, have or reasonably be expected to result in a Material Adverse Effect
      (collectively, the “Intellectual
      Property Rights”).
      Neither the Company nor any Subsidiary has received a written notice that the
      Intellectual Property Rights used by the Company or any Subsidiary violates
      or
      infringes upon the rights of any Person. Except as set forth in the SEC Reports,
      to the knowledge of the Company, all such Intellectual Property Rights are
      enforceable and there is no existing infringement by another Person of any
      of
      the Intellectual Property Rights.

     

    (q)  Insurance.
      The
      Company and the Subsidiaries are insured by insurers of recognized financial
      responsibility against such losses and risks and in such amounts as are prudent
      and customary in the businesses in which the Company and the Subsidiaries are
      engaged. The Company has no reason to believe that it will not be able to renew
      its and the Subsidiaries’ 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 on terms consistent in all material respects with
      market for the Company’s and such Subsidiaries’ respective lines of
      business.

     

    
      
        
        

      

      
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    (r)  Transactions
      With Affiliates and Employees.
      Except
      as set forth in the SEC Reports, none of the officers or directors of the
      Company and, to the knowledge of the Company, none of the employees of the
      Company is presently a party to any transaction with the Company or any
      Subsidiary (other than for services as employees, officers and directors),
      including any contract, agreement or other arrangement providing for the
      furnishing of services to or by, providing for rental of real or personal
      property to or from, or otherwise requiring payments to or from any officer,
      director or such employee or, to the knowledge of the Company, any entity in
      which any officer, director, or any such employee has a substantial interest
      or
      is an officer, director, trustee or partner, which is required to be disclosed
      in accordance with federal securities laws.

     

    (s)  Internal
      Accounting Controls.
      The
      Company and the Subsidiaries maintain 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 accountability, (iii)
      access to assets is permitted only in accordance with management's general
      or
      specific authorization, and (iv) the recorded accountability for assets is
      compared with the existing assets at reasonable intervals and appropriate action
      is taken with respect to any differences. Except as disclosed in the SEC
      Reports, the Company has established disclosure controls and procedures (as
      defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) for the Company and
      designed such disclosure controls and procedures to ensure that material
      information relating to the Company, including its Subsidiaries, is made known
      to the certifying officers by others within those entities, particularly during
      the period in which the Company’s Form 10-KSB or 10-QSB, as the case may be, is
      being prepared. The Company's certifying officers have evaluated the
      effectiveness of the Company's controls and procedures in accordance with Item
      307 of Regulation S-K under the Exchange Act for the Company’s most recently
      ended fiscal quarter or fiscal year-end (such date, the “Evaluation
      Date”).
      The
      Company presented in its most recently filed Form 10-KSB or Form 10-QSB the
      conclusions of the certifying officers about the effectiveness of the disclosure
      controls and procedures based on their evaluations as of the Evaluation Date.
      Since the Evaluation Date, there have been no changes in the Company’s internal
      control over financial reporting that would be required to be disclosed pursuant
      to Item 308(c) of Regulation S-K under the Exchange Act or, to the Company's
      knowledge, in other factors that could reasonably be expected to have a Material
      Adverse Effect on the Company's internal controls.

     

    (t)  Solvency.
      Based
      on the financial condition of the Company as of the Closing Date (and assuming
      that the Closing shall have occurred), (i) the Company's fair saleable value
      of
      its assets exceeds the amount that will be required to be paid on or in respect
      of the Company's existing debts and other liabilities (including known
      contingent liabilities) as they mature; (ii) the Company's assets do not
      constitute unreasonably small capital to carry on its business for the current
      fiscal year as now conducted and as proposed to be conducted including its
      capital needs taking into account the particular capital requirements of the
      business conducted by the Company, and projected capital requirements and
      capital availability thereof; and (iii) the current cash flow of the Company,
      together with the proceeds the Company would receive, were it to liquidate
      all
      of its assets, after taking into account all anticipated uses of the cash,
      would
      be sufficient to pay all amounts on or in respect of its debt when such amounts
      are required to be paid. The Company has no current intention to incur debts
      beyond its ability to pay such debts as they mature (taking into account the
      timing and amounts of cash to be payable on or in respect of its
      debt).

     

    
      
        
        

      

      
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    (u)  Certain
      Fees.
      Except
      as specified in Schedule
      3.1(u),
      no
      brokerage or finder's fees or commissions are or will be payable by the Company
      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 Investors shall have no obligation with
      respect to any fees or with respect to any claims (other than such fees or
      commissions owed by a Investor pursuant to written agreements executed by such
      Investor which fees or commissions shall be the sole responsibility of such
      Investor) 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.

     

    (v)  Certain
      Registration Matters.
      Assuming the accuracy of the Investors’ representations and warranties set forth
      in Section 3.2(b)-(e), no registration under the Securities Act is required
      for
      the offer and sale of the Securities by the Company to the Investors under
      the
      Transaction Documents. The Company is eligible to file to register the resale
      of
      the Registrable Securities (as defined in the Registration Rights Agreement)
      for
      resale by the Investors under Form SB-2 promulgated under the Securities Act.
      Except as specified in Schedule
      3.1(v),
      the
      Company has not granted or agreed to grant to any Person any rights (including
      “piggy-back” registration rights) to have any securities of the Company
      registered with the Commission or any other governmental authority that have
      not
      been satisfied or exercised.

     

    (w)  Listing
      and Maintenance Requirements.
      Except
      as specified in the SEC Reports, the Company has not, since October 27, 2006,
      received notice from any Trading Market to the effect that the Company is not
      in
      compliance with the listing or maintenance requirements thereof. The Company
      is,
      and has no reason to believe that it will not in the foreseeable future continue
      to be, in compliance with the listing and maintenance requirements for continued
      listing of the Common Stock on the Trading Market on which the Common Stock
      is
      currently listed or quoted. The issuance and sale of the Securities under the
      Transaction Documents does not contravene the rules and regulations of the
      Trading Market on which the Common Stock is currently listed or quoted, and
      no
      approval of the shareholders of the Company thereunder is required for the
      Company to enter into and to consummate the transactions contemplated by the
      Transaction Documents, including, without limitation, to issue and deliver
      to
      the Investors the Securities contemplated by the Transaction
      Documents.

     

    
      
        
        

      

      
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    (x)  Investment
      Company.
      The
      Company is not, and is not an Affiliate of, and immediately following Closing
      will not have become, an “investment company” within the meaning of the
      Investment Company Act of 1940, as amended.

     

    (y)  Application
      of Takeover Protections.
      The
      Company has taken all necessary action, if any, in order to render inapplicable
      any control share acquisition, business combination, poison pill (including
      any
      distribution under a rights agreement) or other similar anti-takeover provision
      under the Company's Certificate of Incorporation (or similar charter documents)
      or the laws of its state of incorporation that is or could become applicable
      to
      the Investors or shareholders of the Company prior to the Closing Date as a
      result of the Investors and the Company fulfilling their obligations or
      exercising their rights under the Transaction Documents, including without
      limitation the Company's issuance of the Securities and the Investors' ownership
      of the Securities.

     

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

     

    (aa)  Compliance
      with ERISA.
      (i)
      Each member of the ERISA Group has fulfilled its obligations under the minimum
      funding standards of ERISA and the Code with respect to each Plan and is in
      compliance in all material respects with the presently applicable provisions
      of
      ERISA and the Code with respect to each Plan. No member of the ERISA Group
      has
      (i) sought a waiver of the minimum funding standard under Section 412 of the
      Code in respect of any Plan, (ii) failed to make any required contribution
      or
      payment to any Plan or Multiemployer Plan or in respect of any Benefit
      Arrangement, or made any amendment to any Plan or Benefit Arrangement, which
      has
      resulted or could result in the imposition of a Lien or the posting of a bond
      or
      other security under ERISA or the Code or (iii) incurred any liability under
      Title IV of ERISA other than a liability to the PBGC for premiums under Section
      4007 of ERISA.

     

    (ii) The
      benefit plans not covered under clause (a) above (including profit sharing,
      deferred compensation, stock option, employee stock purchase, bonus, retirement,
      health or insurance plans, collectively the “Benefit
      Plans”)
      relating to the employees of the Company are duly registered where required
      by,
      and are in good standing in all material respects under, all applicable laws.
      All required employer and employee contributions and premiums under the Benefit
      Plans to the date hereof have been made, the respective fund or funds
      established under the Benefit Plans are funded in accordance with applicable
      laws, and no past service funding liabilities exist thereunder.

     

    (iii) No
      Benefit Plans have any unfunded liabilities, either on a “going concern” or
“winding up” basis and determined in accordance with all applicable laws and
      actuarial practices and using actuarial assumptions and methods that are
      reasonable in the circumstances. No event has occurred and no condition exists
      with respect to any Benefit Plans that has resulted or could reasonably be
      expected to result in any pension plan having its registration revoked or wound
      up (in whole or in part) or refused for the purposes of any applicable laws
      or
      being placed under the administration of any relevant pension benefits
      regulatory authority or being required to pay any taxes or penalties (in any
      material amounts) under any applicable laws.

     

    
      
        
        

      

      
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    (bb)  Taxes.
      Except
      as disclosed in the Company’s Annual Report on Form 10-KSB for the fiscal year
      ended December 31, 2006, all United States federal, state, county, municipality
      local or foreign income tax returns and all other material tax returns
      (including foreign tax returns) which are required to be filed by or on behalf
      of the Company and each Subsidiary have been filed and all material taxes due
      pursuant to such returns or pursuant to any assessment received by the Company
      and each Subsidiary have been paid except those being disputed in good faith
      and
      for which adequate reserves have been established. The charges, accruals and
      reserves on the books of the Company and each Subsidiary in respect of taxes
      or
      other governmental charges have been established in accordance with
      GAAP.

     

    (cc)  Absence
      of Any Undisclosed Liabilities or Capital Calls.
      Except
      for litigation described in the SEC Reports, there are no liabilities of the
      Company or any Subsidiary of any kind whatsoever, whether accrued, contingent,
      absolute, determined, determinable or otherwise, and there is no existing
      condition, situation or set of circumstances which could reasonably be expected
      to result in such a liability, other than (i) those liabilities provided for
      in
      the Company’s financial statements and (ii) other undisclosed liabilities which,
      individually or in the aggregate, could not have, or reasonably be expected
      to
      result in, a Material Adverse Effect.

     

    (dd)  Secured
      Indebtedness.
      As of
      the Closing Date, the Company has no Debt that is secured by any
      Lien.

     

    (ee)  Seniority.
      As of
      the date of this Agreement, no indebtedness of the Company is senior to the
      Notes in right of payment, whether with respect to interest or upon liquidation
      or dissolution, or otherwise.

     

    (ff)  Consultation
      with Auditors.
      The
      Company has consulted its independent auditors concerning the accounting
      treatment of the transactions contemplated by the Transaction Documents, and
      in
      connection therewith has furnished such auditors complete copies of the
      Transaction Documents.

     

    (gg)  No
      Disagreements with Accountants and Lawyers.
      There
      are no disagreements of any kind presently existing, or reasonably anticipated
      by the Company to arise, between the Company and the accountants and lawyers
      formerly or presently employed by the Company and the Company is current with
      respect to any fees owed to its accountants and lawyers which could affect
      the
      Company’s ability to perform any of its obligations under any of the Transaction
      Documents.

     

    (hh)  Regulation
      M Compliance.
      The
      Company has not, and to its knowledge no one acting on its behalf has, (i)
      taken, directly or indirectly, any action designed to cause or to result in
      the
      stabilization or manipulation of the price of any security of the Company to
      facilitate the sale or resale of any of the Securities, (ii) sold, bid for,
      purchased, or paid any compensation for soliciting purchases of, any of the
      securities of the Company or (iii) paid or agreed to pay to any Person any
      compensation for soliciting another to purchase any other securities of the
      Company, other than, in the case of clauses (ii) and (iii), compensation paid
      to
      the Company’s placement agent in connection with the placement of the
      Securities.

     

    
      
        
        

      

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

     

    (jj)  Acknowledgment
      Regarding Investors’
      Trading Activity.
      Notwithstanding anything in this Agreement or elsewhere herein to the contrary
      but subject to Section 3.2(f), it is understood and acknowledged by the Company
      that (i) none of the Investors
      has been
      asked to agree by the Company, nor has any Investor
      agreed,
      to desist from purchasing or selling, long and/or short, securities of the
      Company, or “derivative” securities based on securities issued by the Company or
      to hold the Securities for any specified term, (ii) past or future open market
      or other transactions by any Investor,
      specifically including, without limitation, Short Sales or “derivative”
transactions, before or after the closing of this or future private placement
      transactions, may negatively impact the market price of the Company’s
      publicly-traded securities, (iii) any Investor,
      and
      counter-parties in “derivative” transactions to which any such Investor
      is a
      party, directly or indirectly, may presently have a “short” position in the
      Common Stock, and (iv) each Investor
      shall
      not be deemed to have any affiliation with or control over any arm’s length
      counter-party in any “derivative” transaction. Subject to Section 3.2(f),
the
      Company further understands and acknowledges that (a) one or more Investors
      may
      engage in hedging activities at various times during the period that the
      Securities are outstanding, including, without limitation, during the periods
      that the value of the Underlying Shares deliverable with respect to Securities
      are being determined and (b) such hedging activities (if any) could reduce
      the
      value of the existing stockholders' equity interests in the Company at and
      after
      the time that the hedging activities are being conducted.  Subject to
      Section 3.2(f), the Company acknowledges that such aforementioned hedging
      activities do not constitute a breach of any of the Transaction
      Documents.

     

    (kk)  Disclosure.
      The
      Company confirms that neither it nor any Person acting on its behalf has
      provided any Investor or its respective agents or counsel with any information
      that the Company believes constitutes material, non-public information except
      insofar as the existence and terms of the proposed transactions hereunder may
      constitute such information. The Company understands and confirms that the
      Investors will rely on the foregoing representations and covenants in effecting
      transactions in securities of the Company. All disclosure provided to the
      Investors regarding the Company, its business and the transactions contemplated
      hereby, furnished by or on behalf of the Company (including the Company’s
      representations and warranties set forth in this Agreement) are true and correct
      in all material respects and do not contain any untrue statement of a material
      fact or omit to state any material fact necessary in order to make the
      statements made therein, in light of the circumstances under which they were
      made, not misleading.

     

    
      
        
        

      

      
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    3.2  Representations
      and Warranties of the Investors.
      Each
      Investor hereby, for itself and for no other Investor, represents and warrants
      to the Company as follows:

     

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

     

    (b)  Investment
      Intent.
      Such
      Investor is acquiring the Securities as principal for its own account and not
      with a view to or for distributing or reselling such Securities or any part
      thereof, without prejudice, however, to such Investor's right at all times
      to
      sell or otherwise dispose of all or any part of such Securities in compliance
      with applicable federal and state securities laws. Subject to the immediately
      preceding sentence, nothing contained herein shall be deemed a representation
      or
      warranty by such Investor to hold the Securities for any period of time. Such
      Investor is acquiring the Securities hereunder in the ordinary course of its
      business. Such Investor does not have any agreement or understanding, directly
      or indirectly, with any Person to distribute any of the Securities.

     

    (c)  Investor
      Status.
      At the
      time such Investor was offered the Securities, it was, and at the date hereof
      it
      is, an “accredited investor” as defined in Rule 501(a) under the Securities Act.
      Such Investor is not a registered broker-dealer under Section 15 of the Exchange
      Act. Such Investor, either alone or together with its representatives, has
      such
      knowledge, sophistication and experience in business and financial matters
      so as
      to be capable of evaluating the merits and risks of such investment. Such
      Investor is able to bear the economic risk of an investment in the Securities
      and, at the present time, is able to afford a complete loss of such
      investment.

     

    
      
        
        

      

      
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    (d)  General
      Solicitation.
      Such
      Investor has not relied on the content of the Company’s outstanding registration
      statement on Form SB-2 (File #333-142460) and is not purchasing the Securities
      as a result of any advertisement, article, notice or other communication
      regarding the Securities published in any newspaper, magazine or similar media
      or broadcast over television or radio or presented at any seminar or any other
      general solicitation or general advertisement.

     

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

     

    (f)  Certain
      Trading Activities.
      Such
      Investor has not directly or indirectly, nor has any Person acting on behalf
      of
      or pursuant to any understanding with such Investor, engaged in any transactions
      in the securities of the Company (including, without limitations, any Short
      Sales involving the Company’s securities) since the earlier to occur of (1) the
      time that such Investor was first contacted by the Company or placement agent
      engaged by the Company regarding an investment in the Company and (2) the
      20th
      day
      prior to the time that the transactions contemplated by this Agreement are
      publicly disclosed by the Company. Such Investor covenants that neither it
      nor
      any Person acting on its behalf or pursuant to any understanding with it will
      engage in any transactions in the securities of the Company (including Short
      Sales) prior to the time that the transactions contemplated by this Agreement
      are publicly disclosed. Notwithstanding the foregoing, in the case of an
      Investor that is a multi-managed investment vehicle whereby separate portfolio
      managers manage separate portions of such Investor's assets and the portfolio
      managers have no actual knowledge of the investment decisions made by the
      portfolio managers managing other portions of such Investor'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 Securities covered by this Agreement.

     

    (g)  Independent
      Investment Decision.
      Such
      Investor has independently evaluated the merits of its decision to purchase
      Securities pursuant to this Agreement, and such Investor confirms that it has
      not relied on the advice of any other Investor’s business and/or legal counsel
      in making such decision. 

     

    
      
        
        

      

      
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    (h)  Reliance.
      Such
      Investor understands and acknowledges that: (i) the Securities are being offered
      and sold to it without registration under the Securities Act in a private
      placement that is exempt from the registration provisions of the Securities
      Act
      and (ii) the availability of such exemption depends in part on, and the Company
      will rely upon the accuracy and truthfulness of, the foregoing representations
      to the extent they impact such exemption and such Investor hereby consents
      to
      such reliance. Such Investor understands that the Securities may not be offered,
      resold, pledged or otherwise transferred except (i) pursuant to an exemption
      from registration under the Securities Act or pursuant to an effective
      registration statement in compliance with Section 5 under the Securities Act
      and
      (ii) in accordance with all applicable securities laws of the states of the
      United States. 

     

    (i)  Residency.
      Such
      Investor is a resident of the jurisdiction set forth immediately below such
      Investor’s name on the signature pages hereto.

     

    The
      Company acknowledges and agrees that no Investor has made or makes any
      representations or warranties with respect to the transactions contemplated
      hereby other than those specifically set forth in this Section 3.2.

     

    ARTICLE
      IV.

    OTHER
      AGREEMENTS OF THE PARTIES

     

    4.1  (a)The
      Securities may only be disposed of in compliance with state and federal
      securities laws. In connection with any transfer of the Securities other than
      pursuant to an effective registration statement, to the Company, to an Affiliate
      of an Investor or in connection with a pledge as contemplated in Section 4.1(b),
      the Company may require the transferor thereof to provide to the Company an
      opinion of counsel selected by the transferor, the form and substance of which
      opinion shall be reasonably satisfactory to the Company, to the effect that
      such
      transfer does not require registration of such transferred Securities under
      the
      Securities Act. 

     

    (b) Certificates
      evidencing the Securities will contain the following legend, until such time
      as
      they are not required under Section 4.1(c):

     

    [NEITHER
      THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE OF
      THESE SECURITIES HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN
      REGISTERED] WITH THE SECURITIES AND EXCHANGE COMMISSION OR THE SECURITIES
      COMMISSION OF ANY STATE IN RELIANCE UPON AN EXEMPTION FROM REGISTRATION UNDER
      THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), AND, ACCORDINGLY,
      MAY NOT BE OFFERED OR SOLD EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
      STATEMENT UNDER THE SECURITIES ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM,
      OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
      SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE SECURITIES LAWS AS
      EVIDENCED BY A LEGAL OPINION OF COUNSEL TO THE TRANSFEROR TO SUCH EFFECT, THE
      SUBSTANCE OF WHICH SHALL BE REASONABLY ACCEPTABLE TO THE COMPANY. [THESE
      SECURITIES AND THE SECURITIES ISSUABLE UPON CONVERSION OR EXERCISE OF THESE
      SECURITIES] [THESE SECURITIES] MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE
      MARGIN ACCOUNT SECURED BY SUCH SECURITIES.

     

    
      
        
        

      

      
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    The
      Company acknowledges and agrees that an Investor may from time to time pledge,
      and/or grant a security interest in some or all of the Securities pursuant
      to a
      bona fide margin agreement in connection with a bona fide margin account and,
      if
      required under the terms of such agreement or account, such Investor may
      transfer pledged or secured Securities to the pledgees or secured parties.
      Such
      a pledge or transfer would not be subject to approval or consent of the Company
      and no legal opinion of legal counsel to the pledgee, secured party or pledgor
      shall be required in connection with the pledge, but such legal opinion may
      be
      required in connection with a subsequent transfer following default by the
      Investor transferee of the pledge. No notice shall be required of such pledge.
      At the appropriate Investor’s expense, the Company will execute and deliver such
      reasonable documentation as a pledgee or secured party of Securities may
      reasonably request in connection with a pledge or transfer of the Securities
      including the preparation and filing of any required prospectus supplement
      under
      Rule 424(b)(3) of the Securities Act or other applicable provision of the
      Securities Act to appropriately amend the list of selling stockholders
      thereunder.

     

    (c) Certificates
      evidencing Underlying Shares and Warrant Shares shall not contain any legend
      (including the legend set forth in Section 4.1(b) hereof): (i) while a
      registration statement (including the Registration Statement) covering the
      resale of such security is effective under the Securities Act, or (ii) following
      any sale of such Underlying Shares or Warrant Shares pursuant to Rule 144,
      or
      (iii) if such Underlying Shares or Warrant Shares are eligible for sale under
      Rule 144(k), or (iv) if such legend is not required under applicable
      requirements of the Securities Act (including judicial interpretations and
      pronouncements issued by the staff of the Commission). The Company shall cause
      its counsel to issue a legal opinion to the transfer agent promptly after the
      Effective Date if required by the transfer agent to effect the removal of the
      legend hereunder. If all or any portion of a Note or Warrant is converted or
      exercised (as applicable) at a time when there is an effective registration
      statement to cover the resale of the Underlying Shares or Warrant Shares (as
      applicable), or if such Underlying Shares or Warrant Shares may be sold under
      Rule 144(k) or if such legend is not otherwise required under applicable
      requirements of the Securities Act (including judicial interpretations and
      pronouncements issued by the staff of the Commission) then such Underlying
      Shares or Warrant Shares shall be issued free of all legends. The Company agrees
      that following the Effective Date or at such time as such legend is no longer
      required under this Section 4.1(c), it will, no later than three Trading Days
      following the delivery by an Investor to the Company or the transfer agent
      of a
      certificate representing Underlying Shares or Warrant Shares, as applicable,
      issued with a restrictive legend (such third Trading Day, the “Legend
      Removal Date”),
      deliver or cause to be delivered to such Investor a certificate representing
      such shares that is free from all restrictive and other legends. The Company
      may
      not make any notation on its records or give instructions to the transfer agent
      that enlarge the restrictions on transfer set forth in this Section.
      Certificates for Underlying Shares or Warrant Shares subject to legend removal
      hereunder shall be transmitted by the transfer agent to the Investor by
      crediting the account of the Investor’s prime broker with the Depository Trust
      Company System as directed by such Investor. 

     

    
      
        
        

      

      
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    (d) In
      addition to such Investor’s other available remedies, the Company shall pay to
      an Investor, in cash, as partial liquidated damages and not as a penalty, for
      each $1,000 of Underlying Shares (based on the VWAP of the Common Stock on
      the
      date such Securities are submitted to the transfer agent) delivered for removal
      of the restrictive legend and subject to Section 4.1(c), $10 per Trading Day
      (increasing to $20 per Trading Day 5 Trading Days after such damages have begun
      to accrue) for each Trading Day after the second Trading Day following the
      Legend Removal Date until such certificate is delivered without a legend.
      Nothing herein shall limit such Investor’s right to pursue actual damages for
      the Company’s failure to deliver certificates representing any Securities as
      required by the Transaction Documents, and such Investor shall have the right
      to
      pursue all remedies available to it at law or in equity including, without
      limitation, a decree of specific performance and/or injunctive
      relief.

     

    4.2  Furnishing
      of Information.
      As long
      as any Investor owns the Securities, the Company covenants 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. As long as any Investor owns Securities, if the
      Company is not required to file reports pursuant to such laws, it will prepare
      and furnish to the Investors and make publicly available in accordance with
      Rule
      144(c) such information as is required for the Investors to sell the Underlying
      Shares and Warrant Shares under Rule 144. The Company further covenants that
      it
      will take such further action as any holder of Securities may reasonably
      request, all to the extent required from time to time to enable such Person
      to
      sell the Underlying Shares and Warrant Shares without registration under the
      Securities Act within the limitation of the exemptions provided by Rule
      144.

     

    4.3  Listing
      of Securities.
      The
      Company agrees, (i) if the Company applies to have the Common Stock traded
      on
      any other Trading Market, it will include in such application the Underlying
      Shares and Warrant Shares, and will take such other action as is necessary
      or
      desirable to cause the Underlying Shares and Warrant Shares to be listed on
      such
      other Trading Market as promptly as possible, and (ii) it will take all action
      reasonably necessary to continue the listing and trading of its Common Stock
      on
      a Trading Market and will comply in all material respects with the Company’s
      reporting, filing and other obligations under the bylaws or rules of the Trading
      Market.

     

    4.4  Acknowledgment
      of Dilution.
      The
      Company acknowledges that the issuance of Underlying Shares upon conversion
      of
      Notes and Warrant Shares upon exercise of Warrants will result in dilution
      of
      the outstanding shares of Common Stock, which dilution may be substantial.
      The
      Company further acknowledges that its obligation to honor conversions under
      the
      Notes and exercises under the Warrants is unconditional and absolute and not
      subject to any right of set off, counterclaim, delay or reduction, regardless
      of
      the effect of any such dilution or any claim that the Company may have against
      any Investor.

     

    
      
        
        

      

      
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    4.5  Integration.
      The
      Company shall not, and shall use its best 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 would be integrated with the offer or sale of the Securities in a
      manner that would require the registration under the Securities Act of the
      sale
      of the Securities to the Investors, or that would be integrated with the offer
      or sale of the Securities for purposes of the rules and regulations of any
      Trading Market in a manner that would require stockholder approval of the sale
      of the Securities to the Investors.

     

    4.6  Reservation
      of Shares.
      The
      Company shall maintain a reserve from its duly authorized shares of Common
      Stock
      equal to at least 150% of the shares of Common Stock required to comply with
      its
      conversion obligations under the Notes and exercise obligations under the
      Warrants. If on any date the Company would be, if notice of conversion were
      to
      be delivered on such date, precluded from issuing 150% of the number of (i)
      Underlying Shares, as the case may be, issuable upon conversion in full of
      the
      Notes or (ii) Warrant Shares, as the case may be, issuable upon exercise in
      full
      of the Warrants, due to the unavailability of a sufficient number of authorized
      but unissued or reserved shares of Common Stock, then the Board of Directors
      of
      the Company shall promptly prepare and mail to the stockholders of the Company
      proxy materials or other applicable materials requesting authorization to amend
      the Company’s certificate of incorporation or other organizational document to
      increase the number of shares of Common Stock which the Company is authorized
      to
      issue so as to provide enough shares for issuance of the Underlying Shares
      and
      Warrant Shares. In connection therewith, the Board of Directors shall (a) adopt
      proper resolutions authorizing such increase, (b) recommend to and otherwise
      use
      its best efforts to promptly and duly obtain stockholder approval to carry
      out
      such resolutions (and hold a special meeting of the stockholders as soon as
      practicable, but in any event not later than the 60th
      day
      after delivery of the proxy or other applicable materials relating to such
      meeting) and (c) within five Business Days of obtaining such stockholder
      authorization, file an appropriate amendment to the Company’s certificate of
      incorporation or other organizational document to evidence such
      increase.

     

    4.7  Conversion
      Procedures.
      The
      form of Conversion Notice included in and as defined in the Notes sets forth
      the
      totality of the procedures required by the Investors in order to convert the
      Notes. The Company shall honor conversions of the Notes and shall deliver
      Underlying Shares in accordance with the terms, conditions and time periods
      set
      forth in the Transaction Documents.

     

    4.8  Subsequent
      Registrations.
      Other
      than amendments, or prospectus supplements, to the Company’s outstanding
      registration statement filed on Form SB-2 (File No. 333-142460) (other than
      to
      add shares thereto) or pursuant to the Registration Rights Agreement or as
      disclosed in Schedule
      4.8,
      prior
      to the date on which all issued and issuable Registrable Securities have been
      registered on one or more Registration Statements covering all Registrable
      Securities (as defined in the Registration Rights Agreement), the Company may
      not file any registration statement with the Commission with respect to any
      securities of the Company other than registration statements on Form S-8
      promulgated by the Commission. 

     

    
      
        
        

      

      
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    4.9  Securities
      Laws Disclosure; Publicity.
      By 9:00
      a.m. (New York City time) on the Trading Day following the execution of this
      Agreement, and by 9:00 a.m. (New York City time) on the Trading Day following
      the Closing Date (unless the Closing Date occurs on the same date as the
      execution of this Agreement, in which case only one press release will be
      required), the Company shall issue press releases in forms reasonably acceptable
      to the Investors disclosing the transactions contemplated hereby. On the Trading
      Day following the execution of this Agreement the Company will file a Current
      Report on Form 8-K disclosing the material terms of the Transaction Documents
      (and attach as exhibits thereto the Transaction Documents), and on the Trading
      Day following the Closing Date the Company will file an additional Current
      Report on Form 8-K to disclose the Closing (unless the Closing Date occurs
      on
      the same date as the execution of this Agreement, in which case only one press
      release will be required). In addition, the Company will make such other filings
      and notices in the manner and time required by the Commission and the Trading
      Market on which the Common Stock is listed or quoted. Notwithstanding the
      foregoing, the Company shall not publicly disclose the name of any Investor,
      or
      include the name of any Investor in any filing with the Commission (other than
      the Registration Statement and any exhibits to filings made in respect of this
      transaction in accordance with periodic filing requirements under the Exchange
      Act) or any regulatory agency or Trading Market, without the prior written
      consent of such Investor, except to the extent such disclosure is required
      by
      law or Trading Market regulations.

     

    4.10  Limitation
      on Issuance of Future Priced Securities.
      So long
      as any of the Notes are outstanding, the Company shall not issue any “Future
      Priced Securities” as such term is described by NASD IM-4350-1. If any dispute
      between the Company and any of the Investors regarding the application of this
      Section 4.10 to a particular circumstance shall arise, then such dispute shall
      promptly thereafter be submitted for resolution to an independent law firm
      of
      recognized national standing selected by the Company and reasonably acceptable
      to the other Investors party to such dispute, and the written determination
      of
      such law firm with respect to that particular dispute shall be final and
      conclusive. The Company shall endeavor to cause such law firm to render such
      determination as promptly as reasonably practicable, but in no event later
      than
      five (5) Business Days following the day such law firm receives the dispute
      for
      resolution. The reasonable fees and expenses of such law firm in making its
      determination shall be paid by the Company; provided,
      however,
      that in
      the event that such law firm concurs with the Company in its determination,
      the
      fees and expenses of such law firm shall be paid by the Investors party to
      such
      dispute.

     

    4.11  Indemnification
      of Investors.
      In
      addition to the indemnity provided in the Registration Rights Agreement, the
      Company will indemnify and hold the Investors and their directors, officers,
      shareholders, partners, employees and agents (each, an “Investor
      Party”)
      harmless from any and all losses, liabilities, obligations, claims,
      contingencies, damages, costs and expenses, including all judgments, amounts
      paid in settlements, court costs and reasonable attorneys' fees and costs of
      investigation (collectively, “Losses”)
      that
      any such Investor Party may suffer or incur as a result of or relating to any
      misrepresentation, breach or inaccuracy of any representation, warranty,
      covenant or agreement made by the Company in any Transaction Document. In
      addition to the indemnity contained herein, the Company will reimburse each
      Investor Party for its reasonable legal and other expenses (including the cost
      of any investigation, preparation and travel in connection therewith) incurred
      in connection therewith, as such expenses are incurred. Except as otherwise
      set
      forth herein, the mechanics and procedures with respect to the rights and
      obligations under this Section 4.11 shall be the same as those set forth in
      Section 5 of the Registration Rights Agreement.

     

    
      
        
        

      

      
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    4.12  Non-Public
      Information.
      The
      Company covenants and agrees that from and after the date hereof neither it
      nor
      any other Person acting on its behalf will provide any Investor or its agents
      or
      counsel with any information that the Company believes constitutes material
      non-public information, unless prior thereto such Investor shall have executed
      a
      written agreement regarding the confidentiality and use of such information.
      The
      Company understands and confirms that each Investor shall be relying on the
      foregoing representations in effecting transactions in securities of the
      Company. In the event of a breach of the foregoing covenant by the Company,
      or
      any of its Subsidiaries, or any of its or their respective officers, directors,
      employees and agents, in addition to any other remedy provided herein or in
      the
      Transaction Documents, the Company shall publicly disclose any material,
      non-public information in a Form 8-K within five (5) Business Days of the date
      that it discloses such information to the Investor. In the event that the
      Company discloses any material, non-public information to the Investor and
      fails
      to publicly file a Form 8-K in accordance with the above, an Investor shall
      have
      the right to make a public disclosure, in the form of a press release, public
      advertisement or otherwise, of such material, non-public information without
      the
      prior approval by the Company, its Subsidiaries, or any of its or their
      respective officers, directors, employees or agents. No Investor shall have
      any
      liability to the Company, its Subsidiaries, or any of its or their respective
      officers, directors, employees, stockholders or agents, for any such disclosure.
      The Company understands and confirms that each Investor shall be relying on
      the
      foregoing representations in effecting transactions in securities of the
      Company.

     

    4.13  Use
      of
      Proceeds.
      Except
      as specified in Schedule
      4.13,
      the
      Company will use the net proceeds from the sale of the Securities hereunder
      for
      working capital purposes and not for the satisfaction of any portion of the
      Company’s debt (other than payment of trade payables and accrued expenses in the
      ordinary course of the Company’s business and consistent with prior practices),
      or to redeem any Common Stock or Common Stock Equivalents.

     

    4.14  Existence;
      Conduct of Business.
      The
      Company will, and will cause each of the Subsidiaries to, do or cause to be
      done
      all things necessary to preserve, renew and keep in full force and effect its
      legal existence and the rights, licenses, permits, privileges and franchises
      material to the conduct of its business, provided,
      that
      the foregoing shall not prohibit (a) any sale, lease, transfer or other
      disposition permitted by this Agreement, or (b) any merger of (i) any domestic
      Subsidiary with any other domestic Subsidiary, (ii) any domestic Subsidiary
      with
      and into the Company, or (iii) any foreign Subsidiary with any other foreign
      Subsidiary.

     

    4.15  Restrictions
      on Sale.
      The
      Investors shall not, for the six months following the Closing Date, sell,
      transfer, convert, or exercise, directly or indirectly, any Securities. It
      is
      understood that nothing contained in this Section 4.15 shall be deemed to limit
      the provisions of Section 3.1(jj) or Section 3.2(f) hereof.

     

    
      
        
        

      

      
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    4.16  Existing
      Registration Statement.
      The
      Company shall use its best efforts to cause the registration statement on Form
      SB-2 filed by the Company with the Commission on April 30, 2007, to register
      certain shares of Common Stock of the Company, to be declared effective by
      the
      Commission as soon as possible.

     

    ARTICLE
      V.

    NEGATIVE
      COVENANTS

     

    The
      Company hereby agrees that, from and after the date hereof until the date that
      the Notes have either been repaid in their entirety and/or converted entirely
      into Common Stock, the Company shall be bound according to the restrictions
      set
      forth in each of the following negative covenants unless any such restriction
      shall have been expressly waived in writing by the Required
      Investors:

     

    5.1  Restrictions
      on Certain Amendments.
      The
      Company will not amend the rights and privileges granted under the Notes, to
      adversely affect the rights or privileges granted under the Notes.

     

    5.2  Restricted
      Payment.
      Except
      as set forth in Schedule
      5.2,
      the
      Company shall not make any Restricted Payment.

     

    5.3  Debt.
      The
      Company shall not create, incur, assume, become or be liable in any manner
      in
      respect of, or suffer to exist, any Debt, except (a) Debt in existence on the
      date hereof, as shown on Schedule
      5.3(a),
      (b)
      trade payables incurred and paid in the ordinary course of business, (c)
      Contingent Liabilities in existence on the date hereof, as shown on Schedule
      3.1(cc),
      and (d)
      Contingent Liabilities resulting from the endorsement of negotiable instruments
      for collection in the ordinary course of business, (e) Debt incurred to fund
      an
      arms-length acquisition, where the entity being acquired is not an entity in
      which any officer, director, or any employee of the Company or any Subsidiary
      has a substantial interest or is an officer, director, trustee or partner,
      contemplated as a Strategic Transaction (“Strategic
      Acquisition Debt”),
      provided that (i) all such Strategic Acquisition Debt in the aggregate is not
      greater in principal amount than the aggregate principal amount of the Notes
      to
      be issued by the Company to the Investors at the Closing, (ii) all such
      Strategic Acquisition Debt is unsecured and junior in payment and right to
      the
      Notes and (iii) in the case of Strategic Acquisition Debt that is not in the
      form of seller financing, the Company covenants to (1) affirm that such
      Strategic Acquisition Debt is subordinated to the Notes in all respects and
      (2)
      cause a subordination agreement to be executed in respect of such Strategic
      Acquisition Debt, which subordination agreement shall include, among other
      things, customary provisions including a standstill provision of at least 90
      days (collectively (a) through (e) shall be referred to as “Permitted
      Indebtedness”).
      Notwithstanding anything in the Transaction Documents to the contrary and
      without prejudice to any other rights, the Company shall be permitted to repay
      any Strategic Acquisition Debt that is in the form of seller financing;
provided,
      however,
      that
      after giving effect to such repayment, the Company shall have cash and cash
      equivalents in an aggregate amount equal to or exceeding
      $5,000,000.

     

    
      
        
        

      

      
        28

        
          

        

      

      
        
        

      

    

     

    5.4  Liens.
      The
      Company shall not create or suffer to exist any Lien upon any of its properties,
      except (a) Liens in existence on the date hereof and disclosed in Schedule
      3.1(o),
      (b)
      tax, mechanics', materialmen's, warehousemen's, laborer's and landlord and
      other
      similar Liens relating to amounts that are not yet due and payable, or that
      are
      being contested in good faith by appropriate proceedings, for which adequate
      reserves have been established, (c) Liens incurred in the ordinary course of
      business in connection with worker's compensation, unemployment insurance or
      similar legislation and (d) Liens to secure Permitted Indebtedness. Except
      as
      provided in this Section 5.4, the Company shall not hereafter agree with any
      Person (other than the Investors) to grant a Lien on any of its assets or to
      permit the pledge of any of its equity interests.

     

    5.5  Amendment
      of Organizational Documents.
      The
      Company shall not amend its articles of incorporation so as to adversely affect
      the rights or privileges granted under the Notes.

     

    5.6  Sale
      and Leaseback.
      The
      Company shall not enter into any arrangement whereby it sells or transfers
      any
      of its assets, and thereafter rents or leases such assets.

     

    5.7  Business.
      The
      Company shall not change the nature of its business as now conducted (as
      described in the SEC Reports).

     

    5.8  Transactions
      with Affiliates.
      Except
      pursuant to agreements existing as of the date hereof and as set forth in the
      SEC Reports, the Company shall not, directly or indirectly, pay any funds to
      or
      for the account of, make any investment (whether by acquisition of stock or
      indebtedness, by loan, advance, transfer of property, guarantee or other
      agreement to pay, purchase or service, directly or indirectly, any Debt, or
      otherwise) in, lease, sell, transfer or otherwise dispose of any assets,
      tangible or intangible, to, or participate in, or effect any transaction in
      connection with any joint enterprise or other joint arrangement with, any
      Affiliate, except, on terms no less favorable than terms that could be obtained
      by the Company from a Person that is not an Affiliate of the Company upon
      negotiation at arms' length, as determined in good faith by the Board;
provided,
      that no
      determination of the Board of Directors shall be required with respect to any
      such transactions entered into in the ordinary course of business. The Company
      shall not, without the written consent of Investors representing at least 75%
      of
      the aggregate principal amount of all Notes then outstanding, sell or otherwise
      dispose of the Company’s intellectual property to Affiliates.

     

    5.9  Limitation
      on Restrictions.
      Other
      than as permitted by the Transaction Documents, the Company shall not, and
      shall
      not permit any Subsidiary, to enter into, or suffer to exist, any agreement
      with
      any Person which prohibits or limits its ability to (a) pay Debt owed to the
      Investors and (b) make loans or advances to the Company, pay dividends or other
      distributions in respect of its equity interests to the Company (except that
      Subsidiaries may pay dividends or other distributions) or guarantee Debt of
      the
      Company.

     

    5.10  Payment
      of Cash Dividend.The
      Company agrees, so long as any of the Notes are outstanding, not to declare,
      pay
      or make any provision for any cash dividend or distribution with respect to
      the
      Common Stock of the Company, without first obtaining the approval of the
      Required Investors.

     

    
      
        
        

      

      
        29

        
          

        

      

      
        
        

      

    

     

    5.11  Equity
      Financings.
      Prior
      to the thirty (30) day anniversary of the Effective Date (plus one additional
      day for each Trading Day following the Effective Date of any Registration
      Statement during which either (1) a Registration Statement is not effective
      for
      the resale of all Underlying Shares or (2) the prospectus forming a portion
      of
      the Registration Statement is not available for the resale of all Underlying
      Shares) (the “Lockup
      Date”),
      the
      Company shall not, without the written consent of Investors representing at
      least 75% of the aggregate principal amount of all Notes then outstanding,
      issue
      any Common Stock or Common Stock Equivalents that, in each case, are granted
      rights to have such Common Stock or Common Stock Equivalents filed with the
      Commission for the purpose of registering the resale of such Common Stock or
      Common Stock Equivalents before the Lockup Date; provided,
      however, that no such consent shall be required for the issuance by the Company
      of any Common Stock or Common Stock Equivalents in connection with a Strategic
      Transaction; and provided,
      further, that if one or more Registration Statements has previously been
      declared effective as to 75% of the Underlying Shares, then no such consent
      shall be required for the issuance by the Company of any Common Stock or Common
      Stock Equivalents that occurs simultaneously with or following the effectiveness
      of the Registration Statement which results in all Underlying Shares being
      registered and a prospectus forming a portion of a Registration Statement being
      available for the resale of all Underlying Shares.

     

    ARTICLE
      VI.

    MISCELLANEOUS

     

    6.1  Fees
      and Expenses.
      At the
      Closing, or the termination date if there is no Closing, the Company shall
      pay
      to Bryan Cave LLP $40,000 (less amounts previously delivered) as partial
      reimbursement of Enable Capital Management, LLC for their respective legal
      fees
      in connection with the Transaction Documents (Enable Capital Management, LLC
      may
      deduct such amount from the Investment Amount deliverable to the Company at
      Closing), it being understood that Bryan Cave LLP has only rendered legal advice
      to Enable Capital Management, LLC, and not to the Company or any other Investor
      in connection with the transactions contemplated hereby, and that each of the
      Company and the other Investors has relied for such matters on the advice of
      its
      own respective counsel. Except as specified in the immediately preceding
      sentence, each party shall pay the fees and expenses of its advisers, counsel,
      accountants and other experts, if any, and all other expenses incurred by such
      party incident to the negotiation, preparation, execution, delivery and
      performance of the Transaction Documents. The Company shall pay all stamp and
      other taxes and duties levied in connection with the sale of the
      Notes.

     

    6.2  Entire
      Agreement.
      The
      Transaction Documents, together with the Exhibits and Schedules thereto, contain
      the entire understanding of the parties with respect to the subject matter
      hereof and supersede all prior agreements, understandings, discussions and
      representations, oral or written, with respect to such matters, which the
      parties acknowledge have been merged into such documents, exhibits and
      schedules.

     

    6.3  Notices.
      Any and
      all notices or other communications or deliveries required or permitted to
      be
      provided hereunder shall be in writing and shall be deemed given and effective
      on the earliest of (a) the date of transmission, if such notice or communication
      is delivered via facsimile (provided the sender receives a machine-generated
      confirmation of successful transmission) at the facsimile number specified
      in
      this Section prior to 5:30 p.m. (New York City time) on a Trading Day, (b)
      the
      next Trading Day after the date of transmission, if such notice or communication
      is delivered via facsimile at the facsimile number specified in this Section
      on
      a day that is not a Trading Day or later than 5:30 p.m. (New York City time)
      on
      any Trading Day, (c) the Trading Day following the date of mailing, if sent
      by
      U.S. nationally recognized overnight courier service, or (d) upon actual receipt
      by the party to whom such notice is required to be given. The address for such
      notices and communications shall be as follows:

    

      
        	
                If
                  to the Company:

              	 	
                GoFish
                  Corporation

              
	 	 	
                706
                  Mission Street, 10th
                  Floor

              
	 	 	
                San
                  Francisco, California, 94103

              
	 	 	
                Facsimile:
                  (415) 978-9603

              
	 	 	
                Attention:
                  Tabreez Verjee, President

              
	 	 	
                E-mail:
                  tverjee@gacapital.com

              
	 	 	 
	
                With
                  a copy to:

              	 	
                Morrison
                  & Foerster LLP

              
	 	 	
                425
                  Market Street

              
	 	 	
                San
                  Francisco, California 94105

              
	 	 	
                Facsimile:
                  (415)
                  268-7522

              
	 	 	
                Attention:
                  John W. Campbell, Esq.

              
	 	 	
                E-mail:
                  JCampbell@mofo.com

              
	 	 	 
	
                If
                  to an Investor:

              	 	
                To
                  the address or e-mail address set forth under such Investor's name
                  on the
                  signature pages hereof;

              


      

    

     

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

     

    6.4  Amendments;
      Waivers; No Additional Consideration.
      No
      provision of this Agreement may be waived or amended except in a written
      instrument signed by the Company and the Required Investors except as set forth
      below and except that the conditions precedent set forth in Sections 2.1(b)
      and
      2.2(b) may only be waived by each Investor to be bound by such waiver. No waiver
      of any default with respect to any provision, condition or requirement of this
      Agreement shall be deemed to be a continuing waiver in the future or a waiver
      of
      any subsequent default or a waiver of any other provision, condition or
      requirement hereof, nor shall any delay or omission of either party to exercise
      any right hereunder in any manner impair the exercise of any such right. No
      consideration shall be offered or paid to any Investor to amend or consent
      to a
      waiver or modification of any provision of any Transaction Document unless
      the
      same consideration is also offered to all Investors who then hold Notes. Without
      the written consent or the affirmative vote of each Investor affected thereby,
      an amendment or waiver under this Section 6.4 may not:

     

    
      
        
        

      

      
        30

        
          

        

      

      
        
        

      

    

     

    (a)  change
      the maturity of the principal amount of, or the interest payment date under,
      or
      the payment of liquidated damages, is due on, any Note or Warrant;

     

    (b)  make
      any
      change that impairs the conversion or exercise rights of any
      Securities;

     

    (c)  amend
      or
      modify in any manner adverse to the Holders of Securities the Company’s
      obligation to make such payments;

     

    (d)  amend
      the
      definition of Required Investors;

     

    (e)  change
      the currency of any amount owed or owing under the Securities or any interest
      thereon from U.S. Dollars;

     

    (f)  impair
      the right of any Investor to institute suit for the enforcement of any payment
      with respect to, or conversion or exercise of, any Security; 

     

    (g)  modify
      the provisions of this Section 6.4 or Section 6.5; or

     

    (h)  waive
      or
      amend any Transaction Document the effect of which would be to permit the
      Company to (1) name any Investor as an underwriter in a Registration Statement
      without such Investor’s specific written consent thereto, (2) not include any
      Registrable Securities (as defined in the Registration Rights Agreement) of
      an
      Investor in a Registration Statement due to their refusal to be named as an
      underwriter therein, (3) waive any liquidated damages or amend any provisions
      relating thereto, or (4) extend any Filing Date or Effectiveness Date (each
      as
      defined in the Registration Rights Agreement).

     

    It
      shall
      not be necessary for the consent of the Investors under this Section 6.4 to
      approve the particular form of any proposed amendment, but it shall be
      sufficient if such consent approves the substance thereof.

     

    6.5  Termination.
      This
      Agreement may be terminated prior to the Closing:

     

    (a)  by
      written agreement of the Investors and the Company;

     

    (b)  by
      the
      Company or an Investor (as to itself but no other Investor) upon written notice
      to the other, if the Closing shall not have taken place by 5:30 p.m. (New York
      City time) on the Outside Date; provided,
      that
      the right to terminate this Agreement under this Section 6.5(b) shall not
      be available to any Person whose failure to comply with its obligations under
      this Agreement has been the cause of or resulted in the failure of the Closing
      to occur on or before such time. 

     

    (c)  by
      an
      Investor (as to itself but no other Investor) if it concludes in good faith
      that
      any of the conditions precedent contained in Sections 2.1(d)(iv), (v) or (vi)
      shall have been breached or shall not be capable of being satisfied by the
      Outside Date despite the assumed best efforts of the Company.

     

    
      
        
        

      

      
        31

        
          

        

      

      
        
        

      

    

     

    In
      the
      event of a termination pursuant to this Section, the Company shall promptly
      notify all non-terminating Investors and shall pay to the terminating
      Investor(s) all of the fees and expenses incurred by such Investors (including
      reasonable legal fees and expenses) in connection with this Agreement and the
      transactions contemplated by this Agreement through the termination date. Other
      than as to the foregoing fees and expenses, upon a termination in accordance
      with this Section 6.5, the Company and the terminating Investor(s) shall not
      have any further obligation or liability (including as arising from such
      termination) to the other and no Investor will have any liability to any other
      under the Transaction Documents Investor as a result therefrom.

     

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

     

    6.7  Successors
      and Assigns.
      This
      Agreement shall be binding upon and inure to the benefit of the parties and
      their successors and permitted assigns. The Company may not assign this
      Agreement or any rights or obligations hereunder without the prior written
      consent of the Investors. Any Investor may assign any or all of its rights
      under
      this Agreement to any Person to whom such Investor assigns or transfers any
      Notes, provided such transferee agrees in writing to be bound, with respect
      to
      the transferred Securities, by the provisions hereof that apply to the
“Investors.”

     

    6.8  No
      Third-Party Beneficiaries.
      This
      Agreement is intended for the benefit of the parties hereto and their respective
      successors and permitted assigns and is not for the benefit of, nor may any
      provision hereof be enforced by, any other Person, except as otherwise set
      forth
      in Section 4.12 (as to each Investor Party).

     

    6.9  Governing
      Law.
      All
      questions concerning the construction, validity, enforcement and interpretation
      of this Agreement shall be governed by and construed and enforced in accordance
      with the internal laws of the State of New York, without regard to the
      principles of conflicts of law thereof. Each party agrees that all Actions
      concerning the interpretations, enforcement and defense of the transactions
      contemplated by this Agreement and any other Transaction Documents (whether
      brought against a party hereto or its respective Affiliates, employees or
      agents) shall be commenced exclusively in the New York Courts. Each party hereto
      hereby irrevocably submits to the exclusive jurisdiction of the New York Courts
      for the adjudication of any dispute hereunder or in connection herewith or
      with
      any transaction contemplated hereby or discussed herein (including with respect
      to the enforcement of the any of the Transaction Documents), and hereby
      irrevocably waives, and agrees not to assert in any Action, any claim that
      it is
      not personally subject to the jurisdiction of any such New York Court, or that
      such Action has been commenced in an improper or inconvenient forum. Each party
      hereto hereby irrevocably waives personal service of process and consents to
      process being served in any such Action by mailing a copy thereof via registered
      or certified mail or overnight delivery (with evidence of delivery) to such
      party at the address in effect for notices to it under this Agreement and agrees
      that such service shall constitute good and sufficient service of process and
      notice thereof. Nothing contained herein shall be deemed to limit in any way
      any
      right to serve process in any manner permitted by law. Each party hereto hereby
      irrevocably waives, to the fullest extent permitted by applicable law, any
      and
      all right to trial by jury in any legal proceeding arising out of or relating
      to
      this Agreement or the transactions contemplated hereby. If either party shall
      commence an Action to enforce any provisions of a Transaction Document, then
      the
      prevailing party in such Action shall be reimbursed by the other party for
      its
      reasonable attorneys’ fees and other costs and expenses incurred with the
      investigation, preparation and prosecution of such Action.

     

    
      
        
        

      

      
        32

        
          

        

      

      
        
        

      

    

     

    6.10  Survival.
      The
      representations, warranties, agreements and covenants contained herein shall
      survive the Closing and the delivery of the Securities.

     

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

     

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

     

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

     

    6.14  Replacement
      of Securities.
      If any
      certificate or instrument evidencing any Securities is mutilated, lost, stolen
      or destroyed, the Company shall issue or cause to be issued in exchange and
      substitution for and upon cancellation thereof, or in lieu of and substitution
      therefor, a new certificate or instrument, but only upon receipt of evidence
      reasonably satisfactory to the Company of such loss, theft or destruction and
      customary and reasonable indemnity (which shall not include a surety bond),
      if
      requested. The applicants for a new certificate or instrument under such
      circumstances shall also pay any reasonable third-party costs associated with
      the issuance of such replacement Securities. If a replacement certificate or
      instrument evidencing any Securities is requested due to a mutilation thereof,
      the Company may require delivery of such mutilated certificate or instrument
      as
      a condition precedent to any issuance of a replacement.

     

    
      
        
        

      

      
        33

        
          

        

      

      
        
        

      

    

     

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

     

    6.16  Payment
      Set Aside.
      To the
      extent that the Company makes a payment or payments to any Investor pursuant
      to
      any Transaction Document or an Investor enforces or exercises its rights
      thereunder, and such payment or payments or the proceeds of such enforcement
      or
      exercise or any part thereof are subsequently invalidated, declared to be
      fraudulent or preferential, set aside, recovered from, disgorged by or are
      required to be refunded, repaid or otherwise restored to the Company, a trustee,
      receiver or any other person under any law (including, without limitation,
      any
      bankruptcy law, state or federal law, common law or equitable cause of action),
      then to the extent of any such restoration the obligation or part thereof
      originally intended to be satisfied shall be revived and continued in full
      force
      and effect as if such payment had not been made or such enforcement or setoff
      had not occurred.

     

    6.17  Independent
      Nature of Investors' Obligations and Rights.
      The
      obligations of each Investor under any Transaction Document are several and
      not
      joint with the obligations of any other Investor, and no Investor shall be
      responsible in any way for the performance of the obligations of any other
      Investor under any Transaction Document. The decision of each Investor to
      purchase Securities pursuant to the Transaction Documents has been made by
      such
      Investor independently of any other Investor. Nothing contained herein or in
      any
      Transaction Document, and no action taken by any Investor pursuant thereto,
      shall be deemed to constitute the Investors as a partnership, an association,
      a
      joint venture or any other kind of entity, or create a presumption that the
      Investors are in any way acting in concert or as a group with respect to such
      obligations or the transactions contemplated by the Transaction Documents.
      Each
      Investor acknowledges that no other Investor has acted as agent for such
      Investor in connection with making its investment hereunder and that no Investor
      will be acting as agent of such Investor in connection with monitoring its
      investment in the Securities or enforcing its rights under the Transaction
      Documents. Each Investor shall be entitled to independently protect and enforce
      its rights, including without limitation the rights arising out of this
      Agreement or out of the other Transaction Documents, and it shall not be
      necessary for any other Investor to be joined as an additional party in any
      proceeding for such purpose. The Company acknowledges that each of the Investors
      has been provided with the same Transaction Documents for the purpose of closing
      a transaction with multiple Investors and not because it was required or
      requested to do so by any Investor.

     

    
      
        
        

      

      
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    6.18  Limitation
      of Liability.
      Notwithstanding anything herein to the contrary, the Company acknowledges and
      agrees that the liability of an Investor arising directly or indirectly, under
      any Transaction Document of any and every nature whatsoever shall be satisfied
      solely out of the assets of such Investor, and that no trustee, officer, other
      investment vehicle or any other Affiliate of such Investor or any investor,
      shareholder or holder of shares of beneficial interest of such a Investor shall
      be personally liable for any liabilities of such Investor.

     

    6.19  Injunctive
      Relief.
      The
      Company acknowledges that a breach by it of its obligations under the
      Transaction Documents (including but not limited to a breach of (i) the
      prohibition against the issuance of “Future Priced Securities” under Section
      4.10 of this Agreement or (ii) the lock-up provisions of Section 5.11 of this
      Agreement) will cause irreparable harm to the Investors, by vitiating the intent
      and purpose of the transactions contemplated hereby. Accordingly, the Company
      acknowledges that the remedy at law for a breach of its obligations under the
      Transaction Documents will be inadequate and agrees, in the event of a breach
      or
      threatened breach by the Company of the provisions of the Transaction Documents,
      that Investor shall be entitled, in addition to all other available remedies
      in
      law or in equity, to an injunction or injunctions to prevent or cure any
      breaches of the provisions of the Transaction Documents and to enforce
      specifically the terms and provisions of this Agreement, without the necessity
      of showing economic loss and without any bond or other security being
      required.

     

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

     

    
      	 	 	 
	 	GOFISH
              CORPORATION
	 
 	 
 	 
 
	 	By:  	/s/ Tabreez
              Verjee
	 	
              
Name:
              Tabreez Verjee
	 	Title:
              President


    

     

     

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

     

    

      
        	 	
                NAME
                  OF INVESTOR

                 

                ______________________________________________

              
	 	 	 
	 	
                By:

              	
                _________________________________________

              
	 	
              	
                Name:

              
	 	
              	
                Title:

              
	 	
              	 
	 	Investment
                Amount: $_____________________________      
                 
	 	
              	 
	 	Tax
                ID No.: _____________________________________
	 	
              	 
	 	ADDRESS
                FOR NOTICE
	 	
              	 
	 	c/o:
                ___________________________________________
	 	
              	 
	 	Street:
                _________________________________________
	 	
              	 
	 	City/State/Zip:
                ___________________________________
	 	 	 
	 	Attention:
                ______________________________________
	 	
              	 
	 	Tel:
                ___________________________________________
	 	 	 
	 	Fax:
                ___________________________________________
	 	
              	 
	 	E-mail:
                _________________________________________ 
	 	 	 
	 	DELIVERY
                INSTRUCTIONS 
	 	(if
                different from above)
	 	 	 
	 	c/o:
                ___________________________________________
	 	 	 
	 	Street:
                _________________________________________
	 	
              	 
	 	City/State/Zip:
                ___________________________________
	 	 	 
	 	Attention:
                ______________________________________
	 	 	 
	 	Tel:
                ___________________________________________


      

    

     

    
      
        
        

      

      
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