Division;
WHEREAS, contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Pledge and Escrow Agreement
(the "Pledge and Escrow Agreement") pursuant to which the Company has agreed to
provide the Buyer a security interest in the Pledged Shares (as this term is
defined in the Pledge and Escrow Agreement) to secure the Company's obligations
under this Agreement, the Transaction Documents, or any other obligations of the
Company to the Buyer;
(the Pledge and Escrow
Agreement
together with the
Security Agreement collectively the "Security Documents");
WHEREAS, contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering Irrevocable Transfer Agent
Instructions (the "Irrevocable Transfer Agent Instructions"); and
WHEREAS, the Convertible Debentures, the Conversion Shares, the Warrants, and
the Warrants Shares collectively are referred to herein as the "Securities").
NOW, THEREFORE, in consideration of the mutual covenants and other agreements
contained in this Agreement the Company and the Buyer(s) hereby agree as
follows:
1.
PURCHASE AND SALE OF CONVERTIBLE DEBENTURES.
(A)
PURCHASE OF CONVERTIBLE DEBENTURES.
SUBJECT TO THE SATISFACTION
(OR WAIVER) OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, EACH BUYER AGREES,
SEVERALLY AND NOT JOINTLY, TO PURCHASE AT THE CLOSING AND THE COMPANY AGREES TO
SELL AND ISSUE TO EACH BUYER, SEVERALLY AND NOT JOINTLY, AT THE CLOSING,
CONVERTIBLE DEBENTURES IN AMOUNTS CORRESPONDING WITH THE SUBSCRIPTION AMOUNT SET
FORTH OPPOSITE EACH BUYER'S NAME ON SCHEDULE I HERETO.
(B)
CLOSING DATES.
THE CLOSING OF THE PURCHASE AND SALE OF THE
CONVERTIBLE DEBENTURES SHALL TAKE PLACE AT 10:00 A.M. EASTERN STANDARD TIME ON
THE SECOND
(2ND)
BUSINESS DAY FOLLOWING THE DATE HEREOF, SUBJECT TO
NOTIFICATION OF SATISFACTION OF THE CONDITIONS TO THE CLOSING SET FORTH HEREIN
AND IN SECTIONS 6 AND 7 BELOW (OR SUCH LATER DATE AS IS MUTUALLY AGREED TO BY
THE COMPANY AND THE BUYER(S)) (THE "CLOSING DATE").
THE CLOSING SHALL OCCUR ON
THE RESPECTIVE CLOSING DATES AT THE OFFICES OF YORKVILLE ADVISORS, LLC, 3700
HUDSON STREET, SUITE 3700, JERSEY CITY, NEW JERSEY 07302 (OR SUCH OTHER PLACE AS
IS MUTUALLY AGREED TO BY THE COMPANY AND THE BUYER(S)).
(C)
FORM OF PAYMENT.
SUBJECT TO THE SATISFACTION OF THE TERMS AND
CONDITIONS OF THIS AGREEMENT, ON EACH CLOSING DATE, (I) THE BUYERS SHALL DELIVER
TO THE COMPANY SUCH AGGREGATE PROCEEDS FOR THE CONVERTIBLE DEBENTURES TO BE
ISSUED AND SOLD TO SUCH BUYER AT SUCH CLOSING, MINUS THE FEES TO BE PAID
DIRECTLY FROM THE PROCEEDS OF SUCH CLOSING AS SET FORTH HEREIN, AND (II) THE
COMPANY SHALL DELIVER TO EACH BUYER, CONVERTIBLE DEBENTURES WHICH SUCH BUYER IS
PURCHASING AT SUCH CLOSING IN AMOUNTS INDICATED OPPOSITE SUCH BUYER'S NAME ON
SCHEDULE I, DULY EXECUTED ON BEHALF OF THE COMPANY.
2
2.
BUYER'S REPRESENTATIONS AND WARRANTIES.
Each Buyer represents and warrants, severally and not jointly, that:
(A)
INVESTMENT PURPOSE.
EACH BUYER IS ACQUIRING THE SECURITIES FOR
ITS OWN ACCOUNT FOR INVESTMENT ONLY AND NOT WITH A VIEW TOWARDS, OR FOR RESALE
IN CONNECTION WITH, THE PUBLIC SALE OR