agent of the Company, with a mailing address of 350 Indiana Street, Suite 750,
Golden CO 80401 and a facsimile number of 312.601.2312, and any successor
transfer agent of the Company.
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"Warrants" means, collectively, the Common Stock purchase warrants delivered to
the Purchasers at the Closing in accordance with Section 2.2(a) hereof, which
Warrants shall have a term of exercise equal that commences six months and one
day from the Closing Date (the "Initial Exercise Date") and ends on the five
(5) year anniversary of the Initial Exercise Date, in the form of Exhibit A
attached hereto.
"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 EACH OF THE PURCHASERS, SEVERALLY AND NOT JOINTLY,
AGREES TO PURCHASE THE
NUMBER OF SHARES AND WARRANTS SPECIFIED BELOW SUCH PURCHASER'S NAME ON THE
SIGNATURE PAGE TO THIS AGREEMENT.
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 SUCH
LOCATION AS THE PARTIES SHALL MUTUALLY AGREE.
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, IN THE FORM TO BE MUTUALLY
AGREED UPON BY THE PARTIES;
(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 50% OF SUCH PURCHASER'S SHARES,
WITH AN EXERCISE PRICE EQUAL TO $2.08, SUBJECT TO ADJUSTMENT THEREIN (SUCH
WARRANT CERTIFICATE MAY BE DELIVERED WITHIN THREE TRADING DAYS OF THE CLOSING
DATE); AND
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(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