a share of Common Stock as determined by an independent appraiser selected in
good faith by the Purchasers of a majority in interest of the Securities then
outstanding and reasonably acceptable to the Company, the fees and expenses of
which shall be paid by the Company.
"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 be exercisable immediately and have a term of exercise equal to
five (5) years, in the form of Exhibit A attached hereto.
"Warrant Shares" means the shares of Common Stock issuable upon exercise of the
Warrants.
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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 $5,275,000 OF SHARES AND WARRANTS.
EACH PURCHASER'S SUBSCRIPTION
AMOUNT AS SET FORTH ON THE SIGNATURE PAGE HERETO EXECUTED BY SUCH PURCHASER
SHALL BE MADE AVAILABLE FOR "DELIVERY VERSUS PAYMENT" SETTLEMENT WITH THE
COMPANY OR ITS DESIGNEE. 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 EGS OR SUCH OTHER LOCATION (INCLUDING REMOTELY BY FACSIMILE OR OTHER
ELECTRONIC TRANSMISSION) AS THE PARTIES SHALL MUTUALLY AGREE. NOTWITHSTANDING
ANYTHING HEREIN TO THE CONTRARY, IF AT ANY TIME ON OR AFTER THE TIME OF
EXECUTION OF THIS AGREEMENT BY THE COMPANY AND AN APPLICABLE PURCHASER, THROUGH,
AND INCLUDING THE TIME IMMEDIATELY PRIOR TO THE CLOSING (THE "PRE-SETTLEMENT
PERIOD"), IF SUCH PURCHASER SELLS TO ANY PERSON ALL, OR ANY PORTION, OF ANY
COMMON STOCK TO BE ISSUED HEREUNDER TO SUCH PURCHASER AT THE CLOSING
(COLLECTIVELY, THE "PRE-SETTLEMENT SHARES"), SUCH PURCHASER SHALL, AUTOMATICALLY
HEREUNDER (WITHOUT ANY ADDITIONAL REQUIRED ACTIONS BY SUCH PURCHASER OR THE
COMPANY), BE DEEMED TO BE UNCONDITIONALLY BOUND TO PURCHASE, AND THE COMPANY
SHALL BE DEEMED UNCONDITIONALLY BOUND TO SELL, SUCH PRE-SETTLEMENT SHARES TO
SUCH PURCHASER AT THE CLOSING; PROVIDED, THAT THE COMPANY SHALL NOT BE REQUIRED
TO DELIVER ANY PRE-SETTLEMENT SHARES TO SUCH PURCHASER PRIOR TO THE COMPANY'S
RECEIPT OF THE SUBSCRIPTION AMOUNT FOR SUCH PRE-SETTLEMENT SHARES HEREUNDER;
PROVIDED, FURTHER, THAT THE COMPANY HEREBY ACKNOWLEDGES AND AGREES THAT THE
FORGOING SHALL NOT CONSTITUTE A REPRESENTATION OR COVENANT BY SUCH PURCHASER AS
TO WHETHER OR NOT SUCH PURCHASER WILL ELECT TO SELL ANY PRE-SETTLEMENT SHARES
DURING THE PRE-SETTLEMENT PERIOD.
THE DECISION TO SELL ANY SHARES OF COMMON
STOCK WILL BE MADE IN THE SOLE DISCRETION OF SUCH PURCHASER FROM TIME TO TIME,
INCLUDING DURING THE PRE-SETTLEMENT PERIOD. UNLESS OTHERWISE DIRECTED BY THE
PLACEMENT AGENT, SETTLEMENT OF THE SHARES