PURCHASE OF SECURITIES MAY BE SOLICITED BY THE PLACEMENT
AGENT AS AGENT FOR THE COMPANY AT SUCH TIMES AND IN SUCH AMOUNTS AS THE
PLACEMENT AGENT DEEMS ADVISABLE.
THE PLACEMENT AGENT SHALL COMMUNICATE TO THE
COMPANY, ORALLY OR IN WRITING, EACH OFFER TO PURCHASE SECURITIES RECEIVED BY IT
AS PLACEMENT AGENT OF THE COMPANY.
THE COMPANY SHALL HAVE THE SOLE RIGHT TO
ACCEPT OFFERS TO PURCHASE THE SECURITIES AND MAY REJECT ANY SUCH OFFER, IN WHOLE
OR IN PART.
THE PLACEMENT AGENT SHALL HAVE THE RIGHT, IN ITS REASONABLE
DISCRETION, WITHOUT NOTICE TO THE COMPANY, TO REJECT ANY OFFER TO PURCHASE
SECURITIES RECEIVED BY IT, IN WHOLE OR IN PART, AND ANY SUCH REJECTION SHALL NOT
BE DEEMED A BREACH OF ITS AGREEMENT CONTAINED HEREIN.
(D)
THE PURCHASES OF THE SECURITIES BY THE PURCHASERS SHALL BE EVIDENCED BY THE
EXECUTION OF A SUBSCRIPTION AGREEMENT BY EACH OF THE PARTIES THERETO.
(E)
AS COMPENSATION FOR SERVICES RENDERED, ON THE CLOSING DATE, THE COMPANY
SHALL PAY OR CAUSE TO BE PAID TO THE PLACEMENT AGENT BY WIRE TRANSFER OF
IMMEDIATELY AVAILABLE FUNDS TO AN ACCOUNT OR ACCOUNTS DESIGNATED BY THE
PLACEMENT AGENT, AN AGGREGATE AMOUNT EQUAL TO FIVE PERCENT (5%) OF THE GROSS
PROCEEDS RECEIVED BY THE COMPANY FROM THE SALE OF THE SECURITIES ON SUCH CLOSING
DATE.
(F)
NO SECURITIES WHICH THE COMPANY HAS AGREED TO SELL PURSUANT TO THIS
AGREEMENT SHALL BE DEEMED TO HAVE BEEN PURCHASED AND PAID FOR, OR SOLD BY THE
COMPANY, UNTIL SUCH SECURITIES SHALL HAVE BEEN DELIVERED TO THE PURCHASER
THEREOF AGAINST PAYMENT BY SUCH PURCHASER.
IF THE COMPANY SHALL DEFAULT IN ITS
OBLIGATIONS TO DELIVER SECURITIES TO A PURCHASER WHOSE OFFER IT HAS ACCEPTED,
THE COMPANY SHALL INDEMNIFY AND HOLD THE INDEMNIFIED PARTIES (AS DEFINED BELOW)
HARMLESS AGAINST ANY LOSS, CLAIM, DAMAGE OR LIABILITY DIRECTLY OR INDIRECTLY
ARISING FROM OR AS A RESULT OF SUCH DEFAULT BY THE COMPANY.
SECTION 2.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
THE COMPANY HEREBY
REPRESENTS, WARRANTS AND COVENANTS TO THE PLACEMENT AGENT AS FOLLOWS:
(A)
A REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-132594), INCLUDING A
BASE PROSPECTUS DATED MARCH 30, 2006 RELATING TO THE WARRANTS AND CERTAIN OF THE
SHARES,
AND A REGISTRATION STATEMENT ON FORM S-3 (FILE NO. 333-125162),
INCLUDING A BASE PROSPECTUS DATED AUGUST 5, 2005 RELATING TO THE CERTAIN OF THE
SHARES, HAVE BEEN FILED WITH THE SECURITIES AND EXCHANGE COMMISSION (THE
"COMMISSION") AND HAVE BECOME EFFECTIVE.
EACH OF THE BASE PROSPECTUSES SHALL
HEREINAFTER BE CALLED A "BASE PROSPECTUS" AND COLLECTIVELY, THE "BASE
PROSPECTUSES." "REGISTRATION STATEMENT" AS OF ANY TIME MEANS EITHER SUCH
REGISTRATION STATEMENT IN THE FORM THEN FILED WITH THE COMMISSION, INCLUDING ANY
AMENDMENT THERETO, ANY DOCUMENT INCORPORATED BY REFERENCE THEREIN AND ANY
INFORMATION IN THE CORRESPONDING BASE PROSPECTUS OR A PROSPECTUS SUPPLEMENT
DEEMED OR RETROACTIVELY DEEMED TO BE A PART THEREOF PURSUANT TO RULE 430B
("RULE 430B") OR 430C ("RULE 430C") UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), THAT
2
HAS NOT BEEN SUPERSEDED OR MODIFIED.