IN SECTIONS 6 AND 7 BELOW
HAVE BEEN SATISFIED (OR SUCH LATER DATE AS IS MUTUALLY AGREED TO BY THE COMPANY
AND THE BUYER(S)) (THE "SECOND CLOSING DATE") AND THE THIRD 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 COMPANY WISHES TO CONSUMMATE THE THIRD CLOSING (OR SUCH LATER DATE AS
IS MUTUALLY AGREED TO BY THE COMPANY AND THE BUYER(S)) (THE "THIRD CLOSING
DATE") (COLLECTIVELY REFERRED TO A THE "CLOSING DATES").
THE CLOSINGS SHALL
OCCUR ON THE RESPECTIVE CLOSING DATES AT THE OFFICES OF YORKVILLE ADVISORS, LLC,
101 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 NOTES AND WARRANTS 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, NOTES AND WARRANTS 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.
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 DISTRIBUTION THEREOF, EXCEPT PURSUANT TO
SALES REGISTERED OR EXEMPTED UNDER THE SECURITIES ACT; PROVIDED, HOWEVER, THAT
BY MAKING THE REPRESENTATIONS HEREIN, SUCH BUYER RESERVES THE RIGHT TO DISPOSE
OF THE SECURITIES AT ANY TIME IN ACCORDANCE WITH OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT COVERING SUCH SECURITIES OR AN AVAILABLE EXEMPTION UNDER
THE SECURITIES ACT.
SUCH BUYER DOES NOT PRESENTLY HAVE ANY AGREEMENT OR
UNDERSTANDING, DIRECTLY OR INDIRECTLY, WITH ANY PERSON TO DISTRIBUTE ANY OF THE
SECURITIES.
(B)
ACCREDITED INVESTOR STATUS.
EACH BUYER IS AN "ACCREDITED
INVESTOR" AS THAT TERM IS DEFINED IN RULE 501(A)(3) OF REGULATION D.
(C)
RELIANCE ON EXEMPTIONS.
EACH BUYER UNDERSTANDS THAT THE
SECURITIES ARE BEING OFFERED AND SOLD TO IT IN RELIANCE ON SPECIFIC EXEMPTIONS
FROM THE REGISTRATION REQUIREMENTS OF UNITED STATES FEDERAL AND STATE SECURITIES
LAWS AND THAT THE COMPANY IS RELYING IN PART UPON THE TRUTH AND ACCURACY OF, AND
SUCH BUYER'S COMPLIANCE WITH, THE REPRESENTATIONS, WARRANTIES, AGREEMENTS,
ACKNOWLEDGMENTS AND UNDERSTANDINGS OF SUCH BUYER SET FORTH HEREIN IN ORDER TO
DETERMINE THE AVAILABILITY OF SUCH EXEMPTIONS AND THE ELIGIBILITY OF SUCH BUYER
TO ACQUIRE THE SECURITIES.
(D)
INFORMATION.
EACH BUYER AND ITS ADVISORS (AND HIS OR, ITS
COUNSEL), IF ANY, HAVE BEEN FURNISHED WITH ALL MATERIALS RELATING TO THE
BUSINESS, FINANCES AND OPERATIONS OF THE COMPANY