"Warrant Shares" means the shares of Common Stock issuable upon exercise of the
Warrants.
"WS" means Weinstein Smith LLP with offices located at 420 Lexington Avenue,
Suite 2620, New York, New York 10170-0002.
ARTICLE II.
PURCHASE AND SALE
2.1
CLOSING.
ON THE CLOSING DATE, UPON THE TERMS AND SUBJECT TO THE
CONDITIONS SET FORTH HEREIN, SUBSTANTIALLY CONCURRENT WITH THE EXECUTION AND
DELIVERY OF THIS AGREEMENT BY THE PARTIES HERETO, THE COMPANY AGREES TO SELL,
AND THE PURCHASERS, SEVERALLY AND NOT JOINTLY,
AGREE TO PURCHASE, UP TO AN
AGGREGATE OF $30,000,000 OF SHARES AND WARRANTS.
EACH PURCHASER SHALL DELIVER
TO THE COMPANY, VIA WIRE TRANSFER OR A CERTIFIED CHECK OF IMMEDIATELY AVAILABLE
FUNDS EQUAL TO SUCH PURCHASER'S SUBSCRIPTION AMOUNT AS SET FORTH ON THE
SIGNATURE PAGE HERETO EXECUTED BY SUCH PURCHASER AND THE COMPANY SHALL DELIVER
TO EACH PURCHASER ITS RESPECTIVE SHARES AND A WARRANT AS DETERMINED PURSUANT TO
SECTION 2.2(A), AND THE COMPANY AND EACH PURCHASER SHALL DELIVER THE OTHER ITEMS
SET FORTH IN SECTION 2.2 DELIVERABLE AT THE CLOSING.
UPON SATISFACTION OF THE
COVENANTS AND CONDITIONS SET FORTH IN SECTIONS 2.2 AND 2.3, THE CLOSING SHALL
OCCUR AT THE OFFICES OF WS OR SUCH OTHER LOCATION AS THE PARTIES SHALL MUTUALLY
AGREE.
4
2.2
DELIVERIES.
(A)
ON OR PRIOR TO THE CLOSING DATE, THE COMPANY SHALL DELIVER OR
CAUSE TO BE DELIVERED TO EACH PURCHASER THE FOLLOWING:
(I)
THIS AGREEMENT DULY EXECUTED BY THE COMPANY;
(II)
A LEGAL OPINION OF COMPANY COUNSEL, SUBSTANTIALLY IN THE FORM OF
EXHIBIT B ATTACHED HERETO;
(III)
A COPY OF THE IRREVOCABLE INSTRUCTIONS TO THE COMPANY'S TRANSFER
AGENT INSTRUCTING THE TRANSFER AGENT TO DELIVER VIA THE DEPOSITORY TRUST COMPANY
DEPOSIT WITHDRAWAL AGENT COMMISSION SYSTEM ("DWAC") SHARES EQUAL TO SUCH
PURCHASER'S SUBSCRIPTION AMOUNT DIVIDED BY THE PER SHARE PURCHASE PRICE,
REGISTERED IN THE NAME OF SUCH PURCHASER;
(IV)
A WARRANT REGISTERED IN THE NAME OF SUCH PURCHASER TO PURCHASE UP
TO A NUMBER OF SHARES OF COMMON STOCK EQUAL TO 25% OF SUCH PURCHASER'S SHARES,
WITH AN EXERCISE PRICE EQUAL TO $3.50, SUBJECT TO ADJUSTMENT THEREIN (SUCH
WARRANT CERTIFICATE MAY BE DELIVERED WITHIN THREE TRADING DAYS OF THE CLOSING
DATE); AND
(V)
THE PROSPECTUS AND PROSPECTUS SUPPLEMENT (WHICH MAY BE DELIVERED
IN ACCORDANCE WITH RULE 172 UNDER THE SECURITIES ACT).
(B)
ON OR PRIOR TO THE CLOSING DATE, EACH PURCHASER SHALL DELIVER OR
CAUSE TO BE DELIVERED TO THE COMPANY THE FOLLOWING:
(I)
THIS AGREEMENT DULY EXECUTED BY SUCH PURCHASER; AND
(II)
SUCH PURCHASER'S SUBSCRIPTION AMOUNT BY WIRE TRANSFER TO THE
ACCOUNT AS SPECIFIED IN WRITING BY THE COMPANY.
2.3
CLOSING CONDITIONS.
(A)
THE OBLIGATIONS OF THE COMPANY HEREUNDER IN CONNECTION WITH THE
CLOSING ARE SUBJECT TO THE FOLLOWING CONDITIONS BEING MET:
(I)
THE ACCURACY IN ALL MATERIAL RESPECTS ON THE CLOSING DATE OF THE
REPRESENTATIONS AND WARRANTIES OF THE PURCHASERS CONTAINED HEREIN (UNLESS AS OF
A SPECIFIC DATE THEREIN);
(II)
ALL OBLIGATIONS, COVENANTS AND AGREEMENTS OF EACH PURCHASER
REQUIRED TO BE PERFORMED AT OR PRIOR TO THE CLOSING DATE SHALL HAVE BEEN
PERFORMED;