Convertible Debenture
(No. CCP-2007-1) in the amount of Two Million Dollars ($2,000,000) to YA Global
("Debenture CCP-2007-1");
WHEREAS, contemporaneously with the execution and delivery of this Agreement the
Company and YA Global have agreed to amend Debenture CCP-3 and Debenture
CCP-2007-1 pursuant to an amendment in substantially the form attached hereto as
Exhibit Y (the "Debenture Amendments");
WHEREAS, contemporaneously with the execution and delivery of this Agreement,
the parties hereto are executing and delivering a Registration Rights Agreement
(the "Registration Rights Agreement") pursuant to which the Company has agreed
to provide certain registration rights under the Securities Act and the
rules and regulations promulgated there under, and applicable state securities
laws;
WHEREAS, contemporaneously with the execution and delivery of this Agreement,
(i) the Buyer, the Company, and each subsidiary of the Company are executing and
delivering a Security Agreement (all such security agreements shall be referred
to as the "Security Agreement") pursuant to which the Company and its wholly
owned subsidiaries agree to provide the Buyer a security interest in Pledged
Property (as this term is defined in the Security Agreement), and (ii) each
subsidiary of the Company is executing and delivering a Guaranty dated the date
hereof (the "Guaranty" and collectively with the Security Agreement, the
"Security Documents") in favor of the Buyer;
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 Notes, 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 NOTES.
(A)
PURCHASE OF NOTES.
SUBJECT TO THE SATISFACTION (OR WAIVER) OF THE
TERMS AND CONDITIONS OF THIS AGREEMENT, EACH BUYER AGREES, SEVERALLY AND NOT
JOINTLY, TO PURCHASE AT EACH CLOSING AND THE COMPANY AGREES TO SELL AND ISSUE TO
EACH BUYER, SEVERALLY AND NOT JOINTLY, AT EACH CLOSING, NOTES IN AMOUNTS
CORRESPONDING WITH THE SUBSCRIPTION AMOUNT SET FORTH OPPOSITE EACH BUYER'S NAME
ON SCHEDULE I HERETO AND THE WARRANTS TO ACQUIRE UP THAT NUMBER OF WARRANT
SHARES AS SET FORTH OPPOSITE SUCH BUYER'S NAME IN COLUMN (5) ON SCHEDULE I .
(B)
CLOSING DATES.
THE FIRST CLOSING OF THE PURCHASE AND SALE OF THE
NOTES AND WARRANTS SHALL TAKE PLACE AT 10:00 A.M. EASTERN STANDARD TIME ON THE
FIFTH (5TH)
BUSINESS DAY FOLLOWING THE DATE HEREOF, SUBJECT TO NOTIFICATION OF SATISFACTION
OF THE CONDITIONS TO THE FIRST 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 "FIRST CLOSING DATE"), THE SECOND CLOSING OF THE PURCHASE AND
SALE OF THE NOTES SHALL TAKE PLACE AT 4:00 P.M. EASTERN STANDARD TIME ON THE
DATE FOLLOWING THE DATE ON WHICH THE BUYERS RECEIVE WRITTEN NOTICE THAT THE
CONDITIONS TO THE SECOND CLOSING SET FORTH HEREIN AND