{"id":43355,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/common-stock-purchase-agreement-24-7-media-inc-and-maya-cove.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"common-stock-purchase-agreement-24-7-media-inc-and-maya-cove","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/common-stock-purchase-agreement-24-7-media-inc-and-maya-cove.html","title":{"rendered":"Common Stock Purchase Agreement &#8211; 24\/7 Media Inc. and Maya Cove Holdings Inc."},"content":{"rendered":"<pre>                         COMMON STOCK PURCHASE AGREEMENT\n\n\n            This COMMON STOCK PURCHASE AGREEMENT (this \"Agreement\") is dated as\nof March 20, 2001 by and between 24\/7 Media, Inc., a Delaware corporation (the\n\"Company\"), and Maya Cove Holdings Inc. (the \"Purchaser\"), a British Virgin\nIslands corporation.\n\n            WHEREAS, the parties desire that, upon the terms and subject to the\nconditions contained herein, the Company shall issue and sell to Purchaser from\ntime to time as provided herein, and Purchaser shall purchase, up to $50,000,000\nof Common Stock and the Warrant; and\n\n            WHEREAS, such investments will be made by the Purchaser as statutory\nunderwriter of a registered indirect primary offering of such Common Stock by\nthe Company.\n\n            NOW, THEREFORE, in consideration of the foregoing premises, and the\npromises and covenants herein contained, the receipt and sufficiency of which\nare hereby acknowledged by the parties hereto, the parties, intending to be\nlegally bound, hereby agree as follows:\n\n                                   ARTICLE 1\n\n                        PURCHASE AND SALE OF COMMON STOCK\n\n            Section 1.1. PURCHASE AND SALE OF STOCK. Subject to the terms and\nconditions of this Agreement, the Company may sell and issue to the Purchaser\nand the Purchaser shall be obligated to purchase from the Company, up to an\naggregate of, $50,000,000 of the Common Stock and the Warrant, subject to the\nterms herein (the \"Commitment Amount\").\n\n            Section 1.2. PURCHASE PRICE AND INITIAL CLOSING. The Company agrees\nto issue and sell to the Purchaser and, in consideration of and in express\nreliance upon the representations, warranties, covenants, terms and conditions\nof this Agreement, the Purchaser agrees to purchase that number of the Shares to\nbe issued in connection with each Draw Down. The delivery of executed documents\nunder this Agreement and the other agreements referred to herein and the payment\nof the fees set forth in Article I of the Escrow Agreement, attached as EXHIBIT\nB hereto, (the \"Initial Closing\") shall take place at the offices of Epstein\nBecker &amp; Green, P.C., 250 Park Avenue, New York, New York 10177 (i) within\nfifteen (15) days from the date hereof, or (ii) such other time and place or on\nsuch date as the Purchaser and the Company may agree upon (the \"Initial Closing\nDate\"). Each party shall deliver all documents, instruments \n\n\nand writings required to be delivered by such party pursuant to this Agreement\nat or prior to the Initial Closing.\n\n                                    ARTICLE 2\n\n                         REPRESENTATIONS AND WARRANTIES\n\n            Section 2.1. REPRESENTATION AND WARRANTIES OF THE COMPANY. The\nCompany hereby makes the following representations and warranties to the\nPurchaser:\n\n                  (a) ORGANIZATION, GOOD STANDING AND POWER. The Company is a\n      corporation duly incorporated validly existing and in good standing under\n      the laws of the State of Delaware and has all requisite corporate\n      authority to own, lease and operate its properties and assets and to carry\n      on its business as now being conducted. The Company does not have any\n      subsidiaries and does not own more than fifty percent (50%) of or control\n      any other business entity except as set forth in the SEC Documents. The\n      Company is duly qualified to do business and is in good standing as a\n      foreign corporation in every jurisdiction in which the nature of the\n      business conducted or property owned by it makes such qualification\n      necessary, other than those in which the failure so to qualify would not\n      have a Material Adverse Effect.\n\n                  (b) AUTHORIZATION, ENFORCEMENT. (i) The Company has the\n      requisite corporate power and corporate authority to enter into and\n      perform its obligations under the Transaction Documents and to issue the\n      Draw Down Shares pursuant to their respective terms, (ii) the execution\n      and delivery of the Transaction Documents by the Company and the\n      consummation by it of the transactions contemplated hereby and thereby\n      have been duly authorized by all necessary corporate action and no further\n      consent or authorization of the Company or its Board of Directors or\n      stockholders is required, and (iii) the Transaction Documents have been\n      duly executed and delivered by the Company and at the Initial Closing\n      shall constitute valid and binding obligations of the Company enforceable\n      against the Company in accordance with their terms, except as such\n      enforceability may be limited by applicable bankruptcy, insolvency,\n      reorganization, moratorium, liquidation, conservatorship, receivership or\n      similar laws relating to, or affecting generally the enforcement of,\n      creditors' rights and remedies or by other equitable principles of general\n      application.\n\n                  (c) CAPITALIZATION. The authorized capital stock of the\n      Company consists of 70,000,000 shares of Common Stock of which 26,322,752\n      shares are issued and outstanding and 10,000,000 shares of preferred\n      stock, $0.01 par value per share, of which none are issued and\n      outstanding. All of the outstanding shares of the Company's Common Stock\n      have been duly and validly authorized and are fully paid and\n      non-assessable, except as set forth in the SEC Documents. Except as set\n      forth in this Agreement and the Registration Rights Agreement and as set\n      forth in the SEC Documents, or on SCHEDULE 2.1(c) hereto, no shares of\n      Common Stock are entitled to preemptive rights or registration rights and\n      there are no outstanding options, warrants, \n\n\n                                       2\n\n\n      scrip, rights to subscribe to, calls or commitments of any character\n      whatsoever relating to, or securities or rights convertible into, any\n      shares of capital stock of the Company. Furthermore, except as set forth\n      in this Agreement and as set forth in the SEC Documents or on SCHEDULE\n      2.1(c), there are no contracts, commitments, understandings, or\n      arrangements by which the Company is or may become bound to issue\n      additional shares of the capital stock of the Company or options,\n      securities or rights convertible into shares of capital stock of the\n      Company. Except as set forth on SCHEDULE 2.1(c), the Company is not a\n      party to any agreement granting registration rights to any person with\n      respect to any of its equity or debt securities. Except for the\n      Registration Rights Agreement and except as set forth on SCHEDULE 2.1(c),\n      the Company is not a party to, and it has no knowledge of, any agreement\n      restricting the voting or transfer of any shares of the capital stock of\n      the Company. Except as set forth in the SEC Documents or on SCHEDULE\n      2.1(c) hereto, the offer and sale of all capital stock, convertible\n      securities, rights, warrants, or options of the Company issued prior to\n      the Initial Closing complied with all applicable federal and state\n      securities laws, and no stockholder has a right of rescission or damages\n      with respect thereto which would have a Material Adverse Effect. The\n      Company has made available to the Purchaser true and correct copies of the\n      Company's articles or certificate of incorporation as in effect on the\n      date hereof (the \"Charter\"), and the Company's bylaws as in effect on the\n      date hereof (the \"Bylaws\"). The Company has not received any notice from\n      the Principal Market questioning or threatening the continued inclusion of\n      the Common Stock on such market.\n\n                  (d) ISSUANCE OF SHARES. The Warrant Shares to be issued under\n      this Agreement have been duly authorized by all necessary corporate action\n      and, when paid for and issued in accordance with the terms hereof and the\n      Warrant, the Warrant Shares shall be validly issued and outstanding, fully\n      paid and non-assessable, and the Purchaser shall be entitled to all rights\n      accorded to a holder of Common Stock.\n\n                  (e) NO CONFLICTS. Except as set forth on Schedule 2.1(e), the\n      execution, delivery and performance of this Agreement by the Company and\n      the consummation by the Company of the transactions contemplated herein do\n      not and will not (i) violate any provision of the Company's Charter or\n      Bylaws, (ii) conflict with, or constitute a default (or an event which\n      with notice or lapse of time or both would become a default) under, or\n      give to others any rights of termination, amendment, acceleration or\n      cancellation of, any agreement, mortgage, deed of trust, indenture, note,\n      bond, license, lease agreement, instrument or obligation to which the\n      Company is a party, (iii) create or impose a lien, charge or encumbrance\n      on any property of the Company under any agreement or any commitment to\n      which the Company is a party or by which the Company is bound or by which\n      any of its respective properties or assets are bound, or (iv) result in a\n      violation of any federal, state, local or other foreign statute, rule,\n      regulation, order, judgment or decree (including any federal or state\n      securities laws and regulations) applicable to the Company or any of its\n      subsidiaries or by which any property or asset of the Company or any of\n      its subsidiaries are bound or affected, except, in all cases, for such\n      conflicts, defaults, termination, amendments, accelerations, cancellations\n      and violations as would not, individually or in the aggregate, have a\n      Material Adverse Effect. The business of the \n\n\n                                       3\n\n\n      Company and its subsidiaries is not being conducted in violation of any\n      laws, ordinances or regulations of any governmental entity, except for\n      possible violations which singularly or in the aggregate do not and will\n      not have a Material Adverse Effect. The Company is not required under any\n      federal, state or local law, rule or regulation to obtain any consent,\n      authorization or order of, or make any filing or registration with, any\n      court or governmental agency in order for it to execute, deliver or\n      perform any of its obligations under this Agreement, or issue and sell the\n      Shares in accordance with the terms hereof (other than any filings which\n      may be required to be made by the Company with the SEC or state securities\n      administrators subsequent to the Initial Closing and any registration\n      statement which may be filed pursuant hereto); PROVIDED, HOWEVER, that for\n      purpose of the representation made in this sentence, the Company is\n      assuming and relying upon the accuracy of the relevant representations and\n      agreements of the Purchaser herein.\n\n                  (f) SEC DOCUMENTS, FINANCIAL STATEMENTS. The Common Stock of\n      the Company is registered pursuant to Section 12(g) of the Exchange Act,\n      and, except as disclosed in the SEC Documents or on SCHEDULE 2.1(f)\n      hereto, the Company has timely filed all reports, schedules, forms,\n      statements and other documents required to be filed by it with the SEC\n      pursuant to the reporting requirements of the Exchange Act, including\n      material filed pursuant to Section 13(a) or 15(d) of the Exchange Act. The\n      Company has delivered or made available to the Purchaser, through the\n      EDGAR system or otherwise, true and complete copies of the SEC Documents\n      filed with the SEC since December 31, 1998. The Company has not provided\n      to the Purchaser any information which, according to applicable law, rule\n      or regulation, should have been disclosed publicly by the Company but\n      which has not been so disclosed, other than with respect to the\n      transactions contemplated by this Agreement. As of their respective filing\n      dates, the SEC Documents complied in all material respects with the\n      requirements of the Exchange Act or the Securities Act, as applicable, and\n      the rules and regulations of the SEC promulgated thereunder applicable to\n      such documents, and, as of their respective filing dates, none of the SEC\n      Documents contained any untrue statement of a material fact or omitted to\n      state a material fact required to be stated therein or necessary in order\n      to make the statements therein, in light of the circumstances under which\n      they were made, not misleading. The financial statements of the Company\n      included in the SEC Documents comply as to form in all material respects\n      with applicable accounting requirements under GAAP and the published rules\n      and regulations of the SEC or other applicable rules and regulations with\n      respect thereto. Such financial statements have been prepared in\n      accordance with GAAP applied on a consistent basis during the periods\n      involved (except (i) as may be otherwise indicated in such financial\n      statements or the notes thereto or (ii) in the case of unaudited interim\n      statements, to the extent they may not include footnotes or may be\n      condensed or summary statements), and fairly present in all material\n      respects the financial position of the Company and its subsidiaries as of\n      the dates thereof and the results of operations and cash flows for the\n      periods then ended (subject, in the case of unaudited statements, to\n      normal year-end audit adjustments).\n\n                  (g) SUBSIDIARIES. The SEC Documents or Schedule 2.1(g) hereto\n      sets forth each subsidiary of the Company, showing the jurisdiction of its\n      incorporation or \n\n\n                                       4\n\n\n      organization and showing the percentage of the Company's ownership of the\n      outstanding stock or other interests of such subsidiary. For the purposes\n      of this Agreement, \"subsidiary\" shall mean any corporation or other entity\n      of which at least a majority of the securities or other ownership\n      interests having ordinary voting power (absolutely or contingently) for\n      the election of directors or other persons performing similar functions\n      are at the time owned directly or indirectly by the Company and\/or any of\n      its other subsidiaries. All of the issued and outstanding shares of\n      capital stock of each subsidiary have been duly authorized and validly\n      issued, and are fully paid and non-assessable. There are no outstanding\n      preemptive, conversion or other rights, options, warrants or agreements\n      granted or issued by or binding upon any subsidiary for the purchase or\n      acquisition of any shares of capital stock of any subsidiary or any other\n      securities convertible into, exchangeable for or evidencing the rights to\n      subscribe for any shares of such capital stock. Neither the Company nor\n      any subsidiary is subject to any obligation (contingent or otherwise) to\n      repurchase or otherwise acquire or retire any shares of the capital stock\n      of any subsidiary or any convertible securities, rights, warrants or\n      options of the type described in the preceding sentence. Neither the\n      Company nor any subsidiary is a party to, nor has any knowledge of, any\n      agreement restricting the voting or transfer of any shares of the capital\n      stock of any subsidiary.\n\n                  (h) NO MATERIAL ADVERSE EFFECT. Since the date of the\n      financial statement contained in the most recently filed Form 10-Q (or\n      10-QSB) or Form 10-K (or 10-KSB), whichever is most current, no Material\n      Adverse Effect has occurred or exists with respect to the Company, except\n      as disclosed in the SEC Documents or on SCHEDULE 2.1(H) hereto.\n\n                  (i) NO UNDISCLOSED LIABILITIES. Except as disclosed in the SEC\n      Documents or on SCHEDULE 2.1(I) hereto, neither the Company nor any of its\n      subsidiaries has any liabilities, obligations, claims or losses (whether\n      liquidated or unliquidated, secured or unsecured, absolute, accrued,\n      contingent or otherwise) that would be required to be disclosed on a\n      balance sheet of the Company or any subsidiary (including the notes\n      thereto) in conformity with GAAP which are not disclosed in the SEC\n      Documents, other than those incurred in the ordinary course of the\n      Company's or its subsidiaries' respective businesses since such date and\n      which, individually or in the aggregate, do not or would not have a\n      Material Adverse Effect on the Company or its subsidiaries.\n\n                  (j) NO UNDISCLOSED EVENTS OR CIRCUMSTANCES. Since the date of\n      the financial statement contained in the most recently filed Form 10- Q\n      (or 10-QSB) or Form 10-K (or 10-KSB), whichever is most current, no event\n      or circumstance has occurred or exists with respect to the Company or its\n      businesses, properties, prospects, operations or financial condition,\n      that, under applicable law, rule or regulation, requires public disclosure\n      or announcement prior to the date hereof by the Company but which has not\n      been so publicly announced or disclosed in the SEC Documents.\n\n                  (k) INDEBTEDNESS. The SEC Documents or SCHEDULE 2.1(K) hereto\n      sets forth as of the date hereof all outstanding secured and unsecured\n      Indebtedness of the Company or any subsidiary, or for which the Company or\n      any subsidiary has \n\n\n                                       5\n\n\n      commitments. For the purposes of this Agreement, \"Indebtedness\" shall mean\n      (A) any liabilities for borrowed money or amounts owed in excess of\n      $250,000 (other than trade accounts payable incurred in the ordinary\n      course of business), (B) all guaranties, endorsements and contingent\n      obligations in respect of Indebtedness of others, whether or not the same\n      are or should be reflected in the Company's balance sheet (or the notes\n      thereto), except guaranties by endorsement of negotiable instruments for\n      deposit or collection or similar transactions in the ordinary course of\n      business; and (C) the present value of any lease payments in excess of\n      $250,000 due under leases required to be capitalized in accordance with\n      GAAP. Neither the Company nor any subsidiary is in default with respect to\n      any Indebtedness.\n\n                  (l) TITLE TO ASSETS. Each of the Company and the subsidiaries\n      has good and marketable title to all of its real and personal property\n      reflected in the SEC Documents, free of any mortgages, pledges, charges,\n      liens, security interests or other encumbrances, except for those\n      indicated in the SEC Documents or on SCHEDULE 2.1(1) hereto or such that\n      do not cause a Material Adverse Effect. All said leases of the Company and\n      each of its subsidiaries are valid and subsisting and in full force and\n      effect.\n\n                  (m) ACTIONS PENDING. There is no action, suit, claim,\n      investigation or proceeding pending or, to the knowledge of the Company,\n      threatened against the Company or any subsidiary which questions the\n      validity of this Agreement or the transactions contemplated hereby or any\n      action taken or to be taken pursuant hereto or thereto. Except as set\n      forth in the SEC Documents or on SCHEDULE 2.1(M) hereto, there is no\n      action, suit, claim, investigation or proceeding pending or, to the\n      knowledge of the Company, threatened, against or involving the Company,\n      any subsidiary or any of their respective properties or assets. There are\n      no outstanding orders, judgments, injunctions, awards or decrees of any\n      court, arbitrator or governmental or regulatory body against the Company\n      or any subsidiary.\n\n                  (n) COMPLIANCE WITH LAW. The Company and each of its\n      subsidiaries have all franchises, permits, licenses, consents and other\n      governmental or regulatory authorizations and approvals necessary for the\n      conduct of their respective businesses as now being conducted by them\n      unless the failure to possess such franchises, permits, licenses, consents\n      and other governmental or regulatory authorizations and approvals,\n      individually or in the aggregate, could not reasonably be expected to have\n      a Material Adverse Effect.\n\n                  (o) TAXES. The Company and each subsidiary has filed all Tax\n      Returns which it is required to file under applicable laws; all such Tax\n      Returns are true and accurate and have been prepared in compliance with\n      all applicable laws; the Company has paid all Taxes due and owing by it or\n      any subsidiary (whether or not such Taxes are required to be shown on a\n      Tax Return) and has withheld and paid over to the appropriate taxing\n      authorities all Taxes which it is required to withhold from amounts paid\n      or owing to any employee, stockholder, creditor or other third parties;\n      and since December 31, 1999, the charges, accruals and reserves for Taxes\n      with respect to the Company \n\n\n                                       6\n\n\n      (including any provisions for deferred income taxes) reflected on the\n      books of the Company are adequate to cover any Tax liabilities of the\n      Company if its current tax year were treated as ending on the date hereof.\n\n                  No claim has been made by a taxing authority in a jurisdiction\n      where the Company does not file tax returns that the Company or any\n      subsidiary is or may be subject to taxation by that jurisdiction. There\n      are no foreign, federal, state or local tax audits or administrative or\n      judicial proceedings pending or being conducted with respect to the\n      Company or any subsidiary; no information related to Tax matters has been\n      requested by any foreign, federal, state or local taxing authority; and,\n      except as disclosed above, no written notice indicating an intent to open\n      an audit or other review has been received by the Company or any\n      subsidiary from any foreign, federal, state or local taxing authority.\n      There are no material unresolved questions or claims concerning the\n      Company's Tax liability. The Company (A) has not executed or entered into\n      a closing agreement pursuant to ss. 7121 of the Internal Revenue Code or\n      any predecessor provision thereof or any similar provision of state, local\n      or foreign law; and (B) has not agreed to or is required to make any\n      adjustments pursuant to ss. 481 (a) of the Internal Revenue Code or any\n      similar provision of state, local or foreign law by reason of a change in\n      accounting method initiated by the Company or any of its subsidiaries or\n      has any knowledge that the IRS has proposed any such adjustment or change\n      in accounting method, or has any application pending with any taxing\n      authority requesting permission for any changes in accounting methods that\n      relate to the business or operations of the Company. The Company has not\n      been a United States real property holding corporation within the meaning\n      of ss. 897(c)(2) of the Internal Revenue Code during the applicable period\n      specified in ss. 897(c)(1)(A)(ii) of the Internal Revenue Code.\n\n                  The Company has not made an election under ss. 341(f) of the\n      Internal Revenue Code. The Company is not liable for the Taxes of another\n      person that is not a subsidiary of the Company under (A) Treas. Reg. ss.\n      1.1502-6 (or comparable provisions of state, local or foreign law), (B) as\n      a transferee or successor, (C) by contract or indemnity or (D) otherwise.\n      The Company is not a party to any tax sharing agreement. The Company has\n      not made any payments, is not obligated to make payments nor is it a party\n      to an agreement that could obligate it to make any payments that would not\n      be deductible under ss. 280G of the Internal Revenue Code.\n\n                  For purposes of this Section 2.1(o):\n\n                  \"IRS\" means the United States Internal Revenue Service.\n\n                  \"TAX\" or \"TAXES\" means federal, state, county, local, foreign,\n      or other income, gross receipts, ad valorem, franchise, profits, sales or\n      use, transfer, registration, excise, utility, environmental,\n      communications, real or personal property, capital stock, license,\n      payroll, wage or other withholding, employment, social security,\n      severance, stamp, occupation, alternative or add-on minimum, estimated and\n      other taxes of any kind \n\n\n                                       7\n\n\n      whatsoever (including, without limitation, deficiencies, penalties,\n      additions to tax, and interest attributable thereto) whether disputed or\n      not.\n\n                  \"TAX RETURN\" means any return, information report or filing\n      with respect to Taxes, including any schedules attached thereto and\n      including any amendment thereof.\n\n                  (p) CERTAIN FEES. Except as set forth on SCHEDULE 2.1(P)\n      hereto, no brokers, finders or financial advisory fees or commissions will\n      be payable by the Company or any subsidiary with respect to the\n      transactions contemplated by this Agreement.\n\n                  (q) DISCLOSURE. To the best of the Company's knowledge,\n      neither this Agreement or the Schedules hereto nor any other documents,\n      certificates or instruments furnished to the Purchaser by or on behalf of\n      the Company or any subsidiary in connection with the transactions\n      contemplated by this Agreement contains any untrue statement of a material\n      fact or omits to state a material fact necessary in order to make the\n      statements made herein or therein, in the light of the circumstances under\n      which they were made herein or therein, not misleading.\n\n                  (r) OPERATION OF BUSINESS. The Company and each of the\n      subsidiaries owns or possesses all patents, trademarks, service marks,\n      trade names, copyrights, licenses and authorizations as set forth in the\n      SEC Documents or on SCHEDULE 2.1(R) hereto, and all rights with respect to\n      the foregoing, which are necessary for the conduct of its business as now\n      conducted without any conflict with the rights of others.\n\n                  (s) INSURANCE. Except as disclosed in the SEC Documents or on\n      SCHEDULE 2.1(S) hereto, the Company carries or will have the benefit of\n      insurance in such amounts and covering such risks as is adequate for the\n      conduct of its business and the value of its properties and as is\n      customary for companies engaging in similar businesses and similar\n      industries.\n\n                  (t) BOOKS AND RECORDS. The records and documents of the\n      Company and its subsidiaries accurately reflect in all material respects\n      the information relating to the business of the Company and the\n      subsidiaries, the location and collection of their assets, and the nature\n      of all transactions giving rise to the obligations or accounts receivable\n      of the Company or any subsidiary.\n\n                  (u) MATERIAL AGREEMENTS. Except as set forth in the SEC\n      Documents, or on SCHEDULE 2.1(U) hereto, neither the Company nor any\n      subsidiary is a party to any written or oral contract, instrument,\n      agreement, commitment, obligation, plan or arrangement, a copy of which\n      would be required to be filed with the SEC as an exhibit to a registration\n      statement on Form S-1 or other applicable form (collectively, \"Material\n      Agreements\") if the Company or any subsidiary were registering securities\n      under the Securities Act. Except as set forth on SCHEDULE 2.1(U), the\n      Company and each of its subsidiaries has in all material respects\n      performed all the obligations required to be performed by them to date\n      under the foregoing agreements, have received no notice of \n\n\n                                       8\n\n\n      default and, to the best of the Company's knowledge are not in default\n      under any Material Agreement now in effect, the result of which could\n      cause a Material Adverse Effect. Except as set forth in the SEC Documents,\n      no written or oral contract, instrument, agreement, commitment,\n      obligation, plan or arrangement of the Company or of any subsidiary limits\n      or shall limit the payment of dividends on the Company's Common Stock.\n\n                  (v) TRANSACTIONS WITH AFFILIATES. Except as set forth in the\n      SEC Documents or on SCHEDULE 2.1(V) hereto, there are no loans, leases,\n      agreements, contracts, royalty agreements, management contracts or\n      arrangements or other continuing transactions exceeding $100,000 between\n      (A) the Company, any subsidiary or any of their respective customers or\n      suppliers on the one hand, and (B) on the other hand, any officer,\n      employee, consultant or director of the Company, or any of its\n      subsidiaries, or any person owning 5% or more of the capital stock of the\n      Company or any subsidiary or any member of the immediate family of such\n      officer, employee, consultant, director or stockholder or any corporation\n      or other entity controlled by such officer, employee, consultant, director\n      or stockholder, or a member of the immediate family of such officer,\n      employee, consultant, director or stockholder.\n\n                  (w) SECURITIES LAWS. The Company has complied and will comply\n      with all applicable federal and state securities laws in connection with\n      the offer, issuance and sale of the Shares hereunder. Neither the Company\n      nor anyone acting on its behalf, directly or indirectly, has or will sell,\n      offer to sell or solicit offers to buy the Shares or similar securities\n      to, or solicit offers with respect thereto from, or enter into any\n      preliminary conversations or negotiations relating thereto with, any\n      person (other than the Purchaser), so as to bring the issuance and sale of\n      the Shares under the registration provisions of the Securities Act and\n      applicable state securities laws. Neither the Company nor any of its\n      affiliates, nor any person acting on its or their behalf, has engaged in\n      any form of general solicitation or general advertising (within the\n      meaning of Regulation D under the Securities Act) in connection with the\n      offer or sale of the Shares.\n\n                  (x) EMPLOYEES. Neither the Company nor any subsidiary has any\n      collective bargaining arrangements or agreements covering any of its\n      employees. Except as set forth in the SEC Documents or on SCHEDULE 2.1(X)\n      hereto, neither the Company nor any subsidiary is in breach of any\n      employment contract, agreement regarding proprietary information,\n      noncompetition agreement, nonsolicitation agreement, confidentiality\n      agreement, or any other similar contract or restrictive covenant, relating\n      to the right of any officer, employee or consultant to be employed or\n      engaged by the Company or such subsidiary. Except as set forth on Schedule\n      2.1(x), since the date of the December 31, 1999 Form 10-K (or 10-KSB), no\n      officer, consultant or key employee of the Company or any subsidiary whose\n      termination, either individually or in the aggregate, could have a\n      Material Adverse Effect, has terminated or, to the knowledge of the\n      Company, has any present intention of terminating his or her employment or\n      engagement with the Company or any subsidiary.\n\n\n                                       9\n\n\n                  (y) ABSENCE OF CERTAIN DEVELOPMENTS. Except as disclosed in\n      SEC Documents or on SCHEDULE 2.1(Y) hereto, since the date of the\n      financial statement contained in the most recently filed Form 10-Q (or\n      10-QSB) or Form 10-K (or 10KSB), whichever is most current, neither the\n      Company nor any subsidiary has:\n\n                        (i) issued any stock, bonds or other corporate\n            securities or any rights, options or warrants with respect thereto;\n\n                        (ii) borrowed any amount or incurred or become subject\n            to any liabilities (absolute or contingent) except current\n            liabilities incurred in the ordinary course of business which are\n            comparable in nature and amount to the current liabilities incurred\n            in the ordinary course of business during the comparable portion of\n            its prior fiscal year, as adjusted to reflect the current nature and\n            volume of the Company's or such subsidiary's business;\n\n                        (iii) discharged or satisfied any lien or encumbrance or\n            paid any obligation or liability (absolute or contingent), other\n            than current liabilities paid in the ordinary course of business;\n\n                        (iv) declared or made any payment or distribution of\n            cash or other property to stockholders with respect to its stock, or\n            purchased or redeemed, or made any agreements so to purchase or\n            redeem, any shares of its capital stock;\n\n                        (v) sold, assigned or transferred any other tangible\n            assets, or canceled any debts or claims, except in the ordinary\n            course of business;\n\n                        (vi) sold, assigned or transferred any patent rights,\n            trademarks, trade names, copyrights, trade secrets or other\n            intangible assets or intellectual property rights, or disclosed any\n            proprietary confidential information to any person except to\n            customers in the ordinary course of business or to the Purchaser or\n            its representatives;\n\n                        (vii) suffered any material losses (except for\n            anticipated losses consistent with prior quarters) or waived any\n            rights of material value, whether or not in the ordinary course of\n            business, or suffered the loss of any material amount of prospective\n            business;\n\n                        (viii) made any changes in employee compensation except\n            in the ordinary course of business and consistent with past\n            practices;\n\n                        (ix) made capital expenditures or commitments therefor\n            that aggregate in excess of $500,000;\n\n                        (x) entered into any other material transaction, whether\n            or not in the ordinary course of business;\n\n\n                                       10\n\n\n                        (xi) suffered any material damage, destruction or\n            casualty loss, whether or not covered by insurance;\n\n                        (xii) experienced any material problems with labor or\n            management in connection with the terms and conditions of their\n            employment; or\n\n                        (xiii) effected any two or more events of the foregoing\n            kind which in the aggregate would be material to the Company or its\n            subsidiaries.\n\n                  (z) GOVERNMENTAL APPROVALS. Except as set forth in the SEC\n      Documents or on SCHEDULE 2.1(Z) hereto, and except for the filing of any\n      notice prior or subsequent to any Settlement Date that may be required\n      under applicable federal or state securities laws (which if required,\n      shall be filed on a timely basis), including the filing of a registration\n      statement or post-effective amendment pursuant to this Agreement, no\n      authorization, consent, approval, license, exemption of, filing or\n      registration with any court or governmental department, commission, board,\n      bureau, agency or instrumentality, domestic or foreign, is or will be\n      necessary for, or in connection with, the delivery of the Shares, or for\n      the performance by the Company of its obligations under this Agreement.\n\n                  (aa) ACKNOWLEDGMENT REGARDING PURCHASER'S PURCHASE OF SHARES.\n      Company acknowledges and agrees that Purchaser is acting solely in the\n      capacity of arm's length purchaser with respect to this Agreement and the\n      transactions contemplated hereunder. The Company further acknowledges that\n      the Purchaser is not acting as a financial advisor or fiduciary of the\n      Company (or in any similar capacity) with respect to this Agreement and\n      the transactions contemplated hereunder. The Company further represents to\n      the Purchaser that the Company's decision to enter into this Agreement has\n      been based solely on (a) the Purchaser's representations and warranties in\n      Section 3.2, and (b) the independent evaluation by the Company and its own\n      representatives and counsel.\n\n            Section 2.2. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER. The\nPurchaser hereby makes the following representations and warranties to the\nCompany:\n\n                  (a) ORGANIZATION AND STANDING OF THE PURCHASER. The Purchaser\n      is a corporation duly incorporated, validly existing and in good standing\n      under the laws of the British Virgin Islands.\n\n                  (b) AUTHORIZATION AND POWER. The Purchaser has the requisite\n      power and authority to enter into and perform the Transaction Documents\n      and to purchase the Shares being sold to it hereunder. The execution,\n      delivery and performance of the Transaction Documents by Purchaser and the\n      consummation by it of the transactions contemplated hereby have been duly\n      authorized by all necessary corporate action and at the Initial Closing\n      shall constitute valid and binding obligations of the Purchaser\n      enforceable against the Purchaser in accordance with their terms, except\n      as such enforceability may be limited by applicable bankruptcy,\n      insolvency, reorganization, moratorium, liquidation, conservatorship,\n      receivership or similar laws relating to, or affecting generally the\n\n\n                                       11\n\n\n      enforcement of, creditors' rights and remedies or by other equitable\n      principles of general application\n\n                  (c) NO CONFLICTS. The execution, delivery and performance of\n      this Agreement and the consummation by the Purchaser of the transactions\n      contemplated hereby or relating hereto do not and will not (i) result in a\n      violation of the Purchaser's charter documents or bylaws or (ii) conflict\n      with, or constitute a default (or an event which with notice or lapse of\n      time or both would become a default) under, or give to others any rights\n      of termination, amendment, acceleration or cancellation of any agreement,\n      indenture or instrument to which the Purchaser is a party, or result in a\n      violation of any law, rule, or regulation, or any order, judgment or\n      decree of any court or governmental agency applicable to the Purchaser or\n      its properties (except for such conflicts, defaults and violations as\n      would not, individually or in the aggregate, have a Material Adverse\n      Effect on Purchaser). The Purchaser is not required to obtain any consent,\n      authorization or order of, or make any filing or registration with, any\n      court or governmental agency in order for it to execute, deliver or\n      perform any of its obligations under this Agreement or to purchase the\n      Shares in accordance with the terms hereof.\n\n                  (d) FINANCIAL RISKS. The Purchaser acknowledges that it is\n      able to bear the financial risks associated with an investment in the\n      Shares and that it has been given full access to such records of the\n      Company and the subsidiaries and to the officers of the Company and the\n      subsidiaries as it has deemed necessary or appropriate to conduct its due\n      diligence investigation. The Purchaser is capable of evaluating the risks\n      and merits of an investment in the Shares by virtue of its experience as\n      an investor and its knowledge, experience, and sophistication in financial\n      and business matters and the Purchaser is capable of bearing the entire\n      loss of its investment in the Shares.\n\n                  (e) ACCREDITED INVESTOR. The Purchaser is an \"accredited\n      investor\" as defined in Regulation D promulgated under the Securities Act.\n\n                  (f) GENERAL. The Purchaser understands that the Company is\n      relying upon the truth and accuracy of the representations, warranties,\n      agreements, acknowledgments and understandings of the Purchaser set forth\n      herein in order to determine the suitability of the Purchaser to acquire\n      the Shares.\n\n\n                                       12\n\n\n                                    ARTICLE 3\n\n                                    COVENANTS\n\n            The Company covenants with the Purchaser as follows:\n\n            Section 3.1. THE SHARES. As of the date of each applicable Draw\nDown, the Company will have authorized and reserved, free of preemptive rights\nand other similar contractual rights of stockholders, a sufficient number of\nauthorized but unissued shares of its Common Stock to cover the Draw Down Shares\nto be issued in connection with such Draw Down requested under this Agreement.\nThe Draw Down Shares to be issued under this Agreement, when paid for and issued\nin accordance with the terms hereof, shall be duly and validly issued and\noutstanding, fully paid and non-assessable, and the Purchaser shall be entitled\nto all rights accorded to a holder of Common Stock. Anything in this Agreement\nto the contrary notwithstanding, (i) at no time will the Company request a Draw\nDown which would result in the issuance of an aggregate number of shares of\nCommon Stock pursuant to this Agreement which exceeds 19.9% of the number of\nshares of Common Stock issued and outstanding on the Initial Closing Date\nwithout obtaining stockholder approval of such excess issuance, or such other\namount as would require stockholder approval under rules of the Principal Market\nor otherwise without obtaining stockholder approval of such excess issuance, and\n(ii) the Company may not make a Draw Down to the extent that, after such\npurchase by the Purchaser, the sum of the number of shares of Common Stock\nbeneficially owned by the Purchaser and its affiliates would result in\nbeneficial ownership by the Purchaser and its affiliates of more than 9.9% of\nthe then outstanding shares of Common Stock. For purposes of the immediately\npreceding sentence, beneficial ownership shall be determined in accordance with\nSection 13(d) of the Exchange Act.\n\n            Section 3.2. SECURITIES COMPLIANCE. If applicable, the Company shall\nnotify the Principal Market, in accordance with its rules and regulations, of\nthe transactions contemplated by this Agreement, and shall take all other\nnecessary action and proceedings as may be required and permitted by applicable\nlaw, rule and regulation, for the legal and valid issuance of the Shares to the\nPurchaser or subsequent holders.\n\n            Section 3.3. REGISTRATION AND LISTING. The Company will cause its\nCommon Stock to continue to be registered under Sections 12(b) or 12(g) of the\nExchange Act, will comply in all respects with its reporting and filing\nobligations under the Exchange Act, will comply with all requirements related to\nany registration statement filed pursuant to this Agreement, and will not take\nany action or file any document (whether or not permitted by the Securities Act\nor the Exchange Act or the rules promulgated thereunder) to terminate or suspend\nsuch registration or to terminate or suspend its reporting and filing\nobligations under the Exchange Act or Securities Act, except as permitted\nherein. The Company will take all action necessary to continue the listing or\ntrading of its Common Stock on the Principal Market and will \n\n\n                                       13\n\n\ncomply in all respects with the Company's reporting, filing and other\nobligations under the bylaws or rules of the Principal Market and shall provide\nthe Purchaser with copies of any correspondence to or from such Principal Market\nwhich questions or threatens delisting of the Common Stock, within three (3)\nTrading Days of the Company's receipt thereof, until the Purchaser has disposed\nof all of the Shares.\n\n            Section 3.4. ESCROW ARRANGEMENT. The Company and the Purchaser shall\nenter into an escrow arrangement with Epstein Becker &amp; Green, P.C. (the \"Escrow\nAgent\") in the form of EXHIBIT B hereto respecting payment against delivery of\nthe Shares.\n\n            Section 3.5. REGISTRATION RIGHTS AGREEMENT. The Company and the\nPurchaser shall enter into the Registration Rights Agreement in the Form of\nEXHIBIT A hereto. Before the Purchaser shall be obligated to accept a Draw Down\nrequest from the Company, the Company shall have caused a sufficient number of\nshares of Common Stock to be registered to cover the Shares to be issued in\nconnection with such Draw Down.\n\n            Section 3.6. ACCURACY OF REGISTRATION STATEMENT. On each Settlement\nDate, the Registration Statement and the prospectus therein shall not contain\nany untrue statement of a material fact or omit to state any material fact\nrequired to be stated therein or necessary in order to make the statements\ntherein not misleading in light of the circumstances under which they were made;\nand on such Settlement Date or date of filing the Registration Statement and the\nprospectus therein will not include any untrue statement of a material fact or\nomit to state a material fact necessary in order to make the statements therein,\nin the light of the circumstances under which they were made, not misleading;\nPROVIDED, HOWEVER, the Company makes no representations or warranties as to the\ninformation contained in or omitted from the Registration Statement and the\nprospectus therein in reliance upon and in conformity with the information\nfurnished in writing to the Company by the Purchaser specifically for inclusion\nin the Registration Statement and the prospectus therein.\n\n            Section 3.7. COMPLIANCE WITH LAWS. The Company shall comply, and\ncause each subsidiary to comply, with all applicable laws, rules, regulations\nand orders, noncompliance with which could have a Material Adverse Effect.\n\n            Section 3.8. KEEPING OF RECORDS AND BOOKS OF ACCOUNT. The Company\nshall keep and cause each subsidiary to keep adequate records and books of\naccount, in which complete entries will be made in accordance with GAAP\nconsistently applied, reflecting all financial transactions of the Company and\nits subsidiaries, and in which, for each fiscal year, all proper reserves for\ndepreciation, depletion, obsolescence, amortization, taxes, bad debts and other\npurposes in connection with its business shall be made.\n\n            Section 3.9. OTHER AGREEMENTS. The Company shall not enter into any\nagreement the terms of which such agreement would restrict or impair the ability\nof the Company to perform its obligations under this Agreement.\n\n            Section 3.10. NOTICE OF CERTAIN EVENTS AFFECTING REGISTRATION;\nSUSPENSION OF RIGHT TO REQUEST A DRAW DOWN. THE COMPANY WILL PROMPTLY NOTIFY THE\nPURCHASER IN WRITING \n\n\n                                       14\n\n\nAND OBTAIN AN ACKNOWLEDGMENT FROM PURCHASER UPON THE OCCURRENCE OF ANY OF THE\nFOLLOWING EVENTS IN RESPECT OF THE REGISTRATION STATEMENT OR RELATED PROSPECTUS\nIN RESPECT OF THE SHARES: (i) receipt of any request for additional information\nfrom the SEC or any other federal or state governmental authority during the\nperiod of effectiveness of the Registration Statement the response to which\nwould require any amendments or supplements to the Registration Statement or\nrelated prospectus; (ii) the issuance by the SEC or any other federal or state\ngovernmental authority of any stop order suspending the effectiveness of the\nRegistration Statement or the initiation of any proceedings for that purpose;\n(iii) receipt of any notification with respect to the suspension of the\nqualification or exemption from qualification of any of the Shares for sale in\nany jurisdiction or the initiation or threatening of any proceeding for such\npurpose; (iv) the happening of any event that makes any statement made in the\nRegistration Statement or related prospectus or any document incorporated or\ndeemed to be incorporated therein by reference untrue in any material respect or\nthat requires the making of any changes in the Registration Statement, related\nprospectus or documents so that, in the case of the Registration Statement, it\nwill not contain any untrue statement of a material fact or omit to state any\nmaterial fact required to be stated therein or necessary to make the statements\ntherein not misleading, and that in the case of the related prospectus, it will\nnot contain any untrue statement of a material fact or omit to state any\nmaterial fact required to be stated therein or necessary to make the statements\ntherein, in the light of the circumstances under which they were made, not\nmisleading; and (v) the Company's reasonable determination that a post-effective\namendment to the Registration Statement would be appropriate. The Company shall\nnot deliver to the Purchaser any Draw Down Notice during the continuation of any\nof the foregoing events. The Company shall promptly make available to the\nPurchaser any such supplements or amendments to the related prospectus, at which\ntime, provided that the registration statement and any supplements and\namendments thereto are then effective, the Company may recommence the delivery\nof Draw Down Notices.\n\n            Section 3.11. CONSOLIDATION; MERGER. The Company shall not, at any\ntime after the date hereof, effect any merger or consolidation of the Company\nwith or into, or a transfer of all or substantially all of the assets of the\nCompany to, another entity (a \"Consolidation Event\") unless the resulting\nsuccessor or acquiring entity (if not the Company) assumes by written instrument\nor by operation of law the obligation to deliver to the Purchaser such shares of\nstock and\/or securities as the Purchaser is entitled to receive pursuant to this\nAgreement.\n\n            Section 3.12. LIMITATION ON FUTURE FINANCING. The Company agrees\nthat it will not enter into any other equity line type of financing until the\nearlier of (i) eighteen (18) months from the Effective Date, or (ii) sixty (60)\ndays after the entire Commitment Amount has been purchased by the Purchaser.\nFurther, except as to any sale of securities (i) in one or more private\nplacements where the purchasers do not have registration rights, (ii) pursuant\nto any presently existing or future employee benefit plan which plan has been or\nis approved by the Company's stockholders, (iii) pursuant to any compensatory\nplan for a full-time employee or key consultant, (iv) in connection with a\nstrategic partnership or other business transaction, the principal purpose of\nwhich is not simply to raise money, during the Commitment Period, the Purchaser\nshall have a right of first refusal, to elect to participate, in transaction\npursuant to which the Company sells its securities for cash at a discount to the\nthen current market. Such right of first refusal must be \n\n\n                                       15\n\n\nexercised in writing within five (5) Trading Days of the Purchaser's receipt of\nnotice of the proposed terms of such financing.\n\n            Section 3.13. USE OF PROCEEDS. The proceeds from the sale of the\nShares will be used by the Company and its subsidiaries for general corporate\npurposes.\n\n            The Purchaser covenants with the Company as follows:\n\n            Section 3.14. COMPLIANCE WITH LAW. The Purchaser agrees that its\ntrading activities with respect to shares of the Company's Common Stock will be\nin compliance with all applicable state and federal securities laws, rules and\nregulations and rules and regulations of the Principal Market on which the\nCompany's Common Stock is listed. Without limiting the generality of the\nforegoing, the Purchaser agrees that it will, whenever required by federal\nsecurities laws, deliver the prospectus included in the Registration Statement\nto any purchaser of Shares from the Purchaser.\n\n            Section 3.15. NO SHORT SALES. The Purchaser and its affiliates shall\nnot engage in short sales of the Company's Common Stock (as defined in\napplicable SEC and the Principal Market rules) during the term of this\nAgreement.\n\n                                   ARTICLE 4\n\n                  CONDITIONS TO INITIAL CLOSING AND DRAW DOWNS\n\n            Section 4.1. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE COMPANY\nTO SELL THE SHARES. The obligation hereunder of the Company to proceed to close\nthis Agreement and to issue and sell the Shares to the Purchaser is subject to\nthe satisfaction or waiver, at or before the Initial Closing, and as of each\nSettlement Date of each of the conditions set forth below. These conditions are\nfor the Company's sole benefit and may be waived by the Company at any time in\nits sole discretion.\n\n                  (a) ACCURACY OF THE PURCHASER'S REPRESENTATIONS AND\n      WARRANTIES. The representations and warranties of the Purchaser shall be\n      true and correct in all material respects as of the date when made and as\n      of the Initial Closing and as of each Settlement Date as though made at\n      that time, except for representations and warranties that speak as of a\n      particular date.\n\n                  (b) PERFORMANCE BY THE PURCHASER. The Purchaser shall have\n      performed, satisfied and complied in all material respects with all\n      material covenants, agreements and conditions required by this Agreement\n      to be performed, satisfied or complied with by the Purchaser at or prior\n      to the Initial Closing and as of each Settlement Date.\n\n                  (c) NO INJUNCTION. No statute, rule, regulation, executive\n      order, decree, ruling or injunction shall have been enacted, entered,\n      promulgated or endorsed by any \n\n\n                                       16\n\n\n      court or governmental authority of competent jurisdiction which prohibits\n      the consummation of any of the transactions contemplated by this\n      Agreement.\n\n            Section 4.2. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER\nTO CLOSE. The obligation hereunder of the Purchaser to perform its obligations\nunder this Agreement and to purchase the Shares is subject to the satisfaction\nor waiver, at or before the Initial Closing, of each of the conditions set forth\nbelow. These conditions are for the Purchaser's sole benefit and may be waived\nby the Purchaser at any time in its sole discretion.\n\n                  (a) ACCURACY OF THE COMPANY'S REPRESENTATIONS AND WARRANTIES.\n      Each of the representations and warranties of the Company shall be true\n      and correct in all material respects as of the date when made and as of\n      the Initial Closing as though made at that time (except for\n      representations and warranties that speak as of a particular date).\n\n                  (b) PERFORMANCE BY THE COMPANY. The Company shall have\n      performed, satisfied and complied in all respects with all covenants,\n      agreements and conditions required by this Agreement to be performed,\n      satisfied or complied with by the Company at or prior to the Initial\n      Closing.\n\n                  (c) NO INJUNCTION. No statute, rule, regulation, executive\n      order, decree, ruling or injunction shall have been enacted, entered,\n      promulgated or endorsed by any court or governmental authority of\n      competent jurisdiction which prohibits the consummation of any of the\n      transactions contemplated by this Agreement. \n\n                  (d) NO PROCEEDINGS OR LITIGATION. No action, suit or \n      proceeding before any arbitrator or any governmental authority shall \n      have been commenced, and no investigation by any governmental authority \n      shall have been threatened, against the Purchaser or the Company or any \n      subsidiary, or any of the officers, directors or affiliates of the \n      Company or any subsidiary seeking to restrain, prevent or change the \n      transactions contemplated by this Agreement, or seeking damages in \n      connection with such transactions.\n\n                  (e) OPINION OF COUNSEL, ETC. At the Initial Closing, the\n      Purchaser shall have received an opinion of counsel to the Company, dated\n      as of the Initial Closing Date, in the form of EXHIBIT C hereto.\n\n                  (f) WARRANT. On the Initial Closing Date, the Company shall\n      issue to the Purchaser a warrant certificate to purchase up to 100,000\n      shares of Common Stock. The Warrant shall have a term from its date of\n      issuance of three (3) years. The exercise price of the Warrant shall be\n      150% of the average of the closing bid prices of the Common Stock during\n      the fifteen (15) Trading Days immediately prior to the Initial Closing\n      Date. The Common Stock underlying the Warrant will be registered in the\n      Registration Statement referred to in Section 4.3 hereof. The Warrant\n      shall be in the form of EXHIBIT E hereto.\n\n\n                                       17\n\n\n            Section 4.3. CONDITIONS PRECEDENT TO THE OBLIGATION OF THE PURCHASER\nTO ACCEPT A DRAW DOWN AND PURCHASE THE SHARES. The obligation hereunder of the\nPurchaser to accept a Draw Down request and to acquire and pay for the Shares is\nsubject to the satisfaction at or before each Settlement Date, of each of the\nconditions set forth below.\n\n                  (a) SATISFACTION OF CONDITIONS TO INITIAL CLOSING. The Company\n      shall have satisfied, or the Purchaser shall have waived at the Initial\n      Closing, the conditions set forth in Section 4.2 hereof\n\n                  (b) EFFECTIVE REGISTRATION STATEMENT. The Registration\n      Statement registering the Shares shall have been declared effective by the\n      SEC and shall remain effective on each Settlement Date.\n\n                  (c) NO SUSPENSION. Trading in the Company's Common Stock shall\n      not have been suspended by the SEC or the Principal Market (except for any\n      suspension of trading of limited duration agreed to by the Company, which\n      suspension shall be terminated prior to the delivery of each Draw Down\n      Notice), and, at any time prior to such Draw Down Notice, trading in\n      securities generally as reported on the Principal Market shall not have\n      been suspended or limited, or minimum prices shall not have been\n      established on securities whose trades are reported on the Principal\n      Market unless the general suspension or limitation shall have been\n      terminated prior to the delivery of such Draw Down Notice.\n\n                  (d) MATERIAL ADVERSE EFFECT. No Material Adverse Effect and no\n      Consolidation Event where the successor entity has not agreed to perform\n      the Company's obligations shall have occurred.\n\n                  (e) OPINION OF COUNSEL. The Purchaser shall have received (i)\n      a \"down-to-date\" letter from the Company's counsel, confirming that there\n      is no change from the counsel's previously delivered opinion, or else\n      specifying with particularity the reason for any change and an opinion as\n      to the additional items specified in EXHIBIT C hereto, and (ii) any other\n      items set forth in the Escrow Agreement.\n\n                                    ARTICLE 5\n\n                                 DRAW DOWN TERMS\n\n            Section 5.1. DRAW DOWN TERMS. Subject to the satisfaction of the\nconditions set forth in this Agreement, the parties agree as follows:\n\n                  (a) The Company, may, in its sole discretion, issue and\n      exercise draw downs (each a \"Draw Down\") during the Commitment Period,\n      which Draw Downs the Purchaser shall be obligated to accept during the\n      Commitment Period, subject to the terms and conditions herein.\n\n\n                                       18\n\n\n                  (b) Only one Draw Down shall be allowed in each Draw Down\n      Pricing Period. There shall be at least five (5) Trading Days between Draw\n      Down Pricing Periods. The number of shares of Common Stock purchased by\n      the Purchaser with respect to each Draw Down shall be determined as set\n      forth in Section 5.1(e) herein and settled on:\n\n                        (i) as to the 1st through the 10th Trading Day after a\n            Draw Down Pricing Period commences, the 12th Trading Day after such\n            Draw Down Pricing Period commences;\n\n                        (ii) as to the 11th through the 20th Trading Day after a\n            Draw Down Pricing Period commences, the 22nd Trading Day after such\n            Draw Down Pricing Period commences (such settlement periods and such\n            settlement dates in subsection (i) and this subsection (ii) each\n            referred to as a \"Settlement Period\" and a \"Settlement Date\",\n            respectively).\n\n                  (c) In connection with each Draw Down Pricing Period, the\n      Company may set the Threshold Price in the Draw Down Notice.\n\n                  (d) The minimum Investment Amount for any Draw Down shall be\n      $250,000 and the maximum Investment Amount as to each Draw Down shall be\n      6% of the EQY weighted average price field (as reported on Bloomberg\n      Financial L.P. using the BLPH function) for the Common Stock for the sixty\n      (60) calendar days immediately prior to the applicable Commencement Date\n      (defined below) multiplied by the total trading volume in respect of the\n      Common Stock for such period. Notwithstanding anything herein to the\n      contrary, in the event the minimum Investment Amount is greater than the\n      maximum Investment Amount, as to such Draw Down only, the minimum\n      Investment Amount shall equal the maximum Investment Amount, but in no\n      event shall the minimum Investment Amount be less than $100,000 such that\n      if the maximum Investment Amount is less than $100,000, then the Company\n      may not exercise a Draw Down at such time.\n\n                  (e) The number of Shares of Common Stock to be issued on each\n      Settlement Date shall be a number of shares equal to the sum of the\n      quotients (for each trading day within the Settlement Period) of (x)\n      1\/20th of the Investment Amount, and (y) the Purchase Price on each\n      Trading Day within the Settlement Period, subject to the following\n      adjustments:\n\n                        (i) if the VWAP on a given Trading Day is less than the\n            Threshold Price, then that portion of the immediately pending\n            Investment Amount to be paid on the Settlement Date shall be reduced\n            by 1\/20th of the Investment Amount and such Trading Day shall be\n            withdrawn from the Settlement Period;\n\n                        (ii) if during any Trading Day during the Settlement\n            Period trading of the Common Stock on the Principal Market is\n            suspended for more than \n\n\n                                       19\n\n\n            three (3) hours, in the aggregate, or if any Trading Day during the\n            Settlement Period is shortened because of a public holiday, then\n            that portion of the immediately pending Investment Amount to be paid\n            on the Settlement Date shall be reduced by 1\/20th of the Investment\n            Amount and such Trading Day shall be withdrawn from the Settlement\n            Period; and\n\n                        (iii) if during any Trading Day during the Settlement\n            Period sales of Draw Down Shares pursuant to the Registration\n            Statement are suspended by the Company in accordance with Section\n            3(j) herein or Section 5(e) of the Registration Rights Agreement for\n            more than three (3) hours, in the aggregate, during the Settlement\n            Period, then that portion of the immediately pending Investment\n            Amount to be paid on the Settlement Date shall be reduced by 1\/20th\n            of the Investment Amount and such Trading Day shall be withdrawn\n            from the Settlement Period.\n\n                  (f) The Company must inform the Purchaser by delivering a draw\n      down notice, in the form of EXHIBIT D hereto (the \"Draw Down Notice\"), via\n      facsimile transmission in accordance with Section 8.4 as to the amount of\n      the Draw Down (the \"Investment Amount\") the Company wishes to exercise,\n      before the first day of the Draw Down Pricing Period (the \"Commencement\n      Date\"). If the Commencement Date is to be the date of the Draw Down\n      Notice, the Draw Down Notice must be delivered to and receipt confirmed by\n      the Purchaser at least one hour before trading commences on such date. At\n      no time shall the Purchaser be required to purchase more than the maximum\n      Investment Amount for a given Draw Down Pricing Period so that if the\n      Company chooses not to exercise the maximum Investment Amount in a given\n      Draw Down Pricing Period the Purchaser is not obligated to and shall not\n      purchase more than the scheduled maximum Investment Amount in a subsequent\n      Draw Down Pricing Period.\n\n                  (g) On each Settlement Date, the Shares purchased by the\n      Purchaser shall be delivered to The Depository Trust Company (\"DTC\") on\n      the Purchaser's behalf. Upon the Company electronically delivering whole\n      shares of Common Stock to the Purchaser or its designees via DTC through\n      its Deposit Withdrawal Agent Commission (\"DWAC\") system by 1:00 p.m. EST,\n      the Purchaser shall wire transfer immediately available funds to the\n      Company's designated account on such day, less any fees as set forth in\n      the Escrow Agreement, which fees shall be wired as directed in the Escrow\n      Agreement. Upon the Company electronically delivering whole shares of\n      Common Stock to the Purchaser or its designees DTC account via DWAC after\n      1:00 p.m. EST, the Purchaser shall wire transfer next day available funds\n      to the Company's designated account on such day, less any fees as set\n      forth in the Escrow Agreement, which fees shall be wired as directed in\n      the Escrow Agreement. In the event that either party elects to use the\n      Escrow Agent, the Shares shall be credited by the Company to the DTC\n      account designated by the Purchaser via DWAC upon receipt by the Escrow\n      Agent of payment for the Draw Down Shares into the Escrow Agent's master\n      escrow account, all as further set forth in the Escrow Agreement. The\n      Escrow Agent shall be directed to pay the purchase price to the Company,\n      net of one thousand dollars ($1,000) per Settlement as escrow \n\n\n                                       20\n\n\n      expenses to the Escrow Agent and any additional fees as set forth in the\n      Escrow Agreement.\n\n                                    ARTICLE 6\n\n                                   TERMINATION\n\n            Section 6.1. TERM. The term of this Agreement shall begin on the\ndate hereof and shall end eighteen (18) months from the Effective Date or as\notherwise set forth in Section 6.2.\n\n            Section 6.2. OTHER TERMINATION.\n\n                  (a) This Agreement shall terminate upon one (1) Trading Day's\n      notice if (i) an event resulting in a Material Adverse Effect has occurred\n      and has not been cured for a period of thirty (30) days after giving\n      notice thereof, (ii) the Common Stock is de-listed from the Principal\n      Market unless such de-listing is in connection with the Company's\n      subsequent listing of the Common Stock on the Nasdaq National Market,\n      Nasdaq SmallCap Market, the American Stock Exchange or the New York Stock\n      Exchange, or (iii) the Company files for protection from creditors under\n      any applicable law.\n\n                  (b) The Company may terminate this Agreement upon one (1)\n      Trading Day's notice if the Purchaser shall fail to fund more than one\n      properly noticed Draw Down within five (5) Trading Days of the end of the\n      applicable Settlement Period.\n\n            Section 6.3. EFFECT OF TERMINATION. In the event of termination by\nthe Company or the Purchaser, written notice thereof shall forthwith be given to\nthe other party and the transactions contemplated by this Agreement shall be\nterminated without further action by either party. If this Agreement is\nterminated as provided in Section 6.1 or 6.2 herein, this Agreement shall become\nvoid and of no further force and effect, except for Sections 8.1, 8.2 and 8.9,\nand Article 7 herein. Nothing in this Section 6.3 shall be deemed to release the\nCompany or the Purchaser from any liability for any breach under this Agreement,\nor to impair the rights of the Company or the Purchaser to compel specific\nperformance by the other party of its obligations under this Agreement.\n\n                                    ARTICLE 7\n\n                                 INDEMNIFICATION\n\n            Section 7.1. General Indemnity.\n\n                  (a) The Company agrees to indemnify and hold harmless the\n      Purchaser (and its directors, officers, affiliates, agents, successors and\n      assigns) from and against any and all losses, liabilities, deficiencies,\n      costs, damages and expenses (including, without \n\n\n                                       21\n\n\n      limitation, reasonable attorneys' fees, charges and disbursements)\n      incurred by the Purchaser as a result of any inaccuracy in or breach of\n      the representations, warranties or covenants made by the Company herein.\n\n                  (b) The Purchaser agrees to indemnify and hold harmless the\n      Company and its directors, officers, affiliates, agents, successors and\n      assigns from and against any and all losses, liabilities, deficiencies,\n      costs, damages and expenses (including, without limitation, reasonable\n      attorneys' fees, charges and disbursements) incurred by the Company as\n      result of any material inaccuracy in or breach of the representations,\n      warranties or covenants made by the Purchaser herein. Notwithstanding\n      anything to the contrary herein, the Purchaser shall be liable under this\n      Section 7.1(b) for only that amount as does not exceed the net proceeds to\n      the Purchaser as a result of the sale of the Shares.\n\n            Section 7.2. INDEMNIFICATION PROCEDURE. Any party entitled to\nindemnification under this Article 7 (an \"Indemnified Party\") will give written\nnotice to the indemnifying party of any matters giving rise to a claim for\nindemnification; provided, that the failure of any party entitled to\nindemnification hereunder to give notice as provided herein shall not relieve\nthe indemnifying party of its obligations under this Article 7 except to the\nextent that the indemnifying party is actually prejudiced by such failure to\ngive notice. In case any action, proceeding or claim is brought against an\nIndemnified Party in respect of which indemnification is sought hereunder, the\nindemnifying party shall be entitled to participate in and, unless in the\nreasonable judgment of counsel to the Indemnified Party a conflict of interest\nbetween it and the indemnifying party may exist with respect of such action,\nproceeding or claim, to assume the defense thereof with counsel reasonably\nsatisfactory to the Indemnified Party. In the event that the indemnifying party\nadvises an Indemnified Party that it will contest such a claim for\nindemnification hereunder, or fails, within thirty (30) days of receipt of any\nindemnification notice to notify, in writing, such person of its election to\ndefend, settle or compromise, at its sole cost and expense, any action,\nproceeding or claim (or discontinues its defense at any time after it commences\nsuch defense), then the Indemnified Party may, at its option, defend, settle or\notherwise compromise or pay such action or claim. In any event, unless and until\nthe indemnifying party elects in writing to assume and does so assume the\ndefense of any such claim, proceeding or action, the Indemnified Party's costs\n(including reasonable attorneys' fees, charges and disbursements) and expenses\narising out of the defense, settlement or compromise of any such action, claim\nor proceeding shall be losses subject to indemnification hereunder. The\nIndemnified Party shall cooperate fully with the indemnifying party in\nconnection with any settlement negotiations or defense of any such action or\nclaim by the indemnifying party and shall furnish to the indemnifying party all\ninformation reasonably available to the Indemnified Party, which relates to such\naction or claim. The indemnifying party shall keep the Indemnified Party fully\napprised at all times as to the status of the defense or any settlement\nnegotiations with respect thereto. If the indemnifying party elects to defend\nany such action or claim, then the Indemnified Party shall be entitled to\nparticipate in such defense with counsel of its choice at its sole cost and\nexpense. The indemnifying party shall not be liable for any settlement of any\naction, claim or proceeding effected without its prior written consent.\nNotwithstanding anything in this Article 7 to the contrary, the indemnifying\nparty shall not, without the Indemnified Party's \n\n\n                                       22\n\n\nprior written consent, settle or compromise any claim or consent to entry of any\njudgment in respect thereof which imposes any future obligation on the\nIndemnified Party or which does not include, as an unconditional term thereof,\nthe giving by the claimant or the plaintiff to the Indemnified Party of a\nrelease from all liability in respect of such claim. The indemnification\nrequired by this Article 7 shall be made by periodic payments of the amount\nthereof during the course of investigation or defense, as and when bills are\nreceived or expense, loss, damage or liability is incurred, within ten (10)\nTrading Days of written notice thereof to the indemnifying party so long as the\nIndemnified Party irrevocably agrees to refund such moneys, with interest, if it\nis ultimately determined by a court of competent jurisdiction that such party\nwas not entitled to indemnification. The indemnity agreements contained herein\nshall be in addition to (a) any cause of action or similar rights of the\nIndemnified Party against the indemnifying party or others, and (b) any\nliabilities to which the indemnifying party may be subject.\n\n                                    ARTICLE 8\n\n                                  MISCELLANEOUS\n\n            Section 8.1. FEES AND EXPENSES. Each of the parties to this\nAgreement shall pay its own fees and expenses related to the transactions\ncontemplated by this Agreement; except that, the Company shall pay, at the\nInitial Closing, a non-accountable expense allowance of $35,000 for the\nPurchaser's legal, administrative and due diligence costs and expenses and any\nother additional fees as set forth in the Escrow Agreement. In addition, the\nCompany shall pay all reasonable fees and expenses incurred by the Purchaser in\nconnection with any subsequent amendments, modifications or waivers of this\nAgreement, the Escrow Agreement or the Registration Rights Agreement or incurred\nin connection with the enforcement of this Agreement, the Escrow Agreement and\nthe Registration Rights Agreement, including, without limitation, all reasonable\nattorneys' fees and expenses if such subsequent amendment, modification or\nwaiver is at the request of the Company. The Company shall pay all stamp or\nother similar taxes and duties levied in connection with issuance of the Shares\npursuant hereto.\n\n            Section 8.2. SPECIFIC ENFORCEMENT. The Company and the Purchaser\nacknowledge and agree that irreparable damage would occur in the event that any\nof the provisions of this Agreement were not performed in accordance with their\nspecific terms or were otherwise breached. It is accordingly agreed that the\nparties shall be entitled to an injunction or injunctions to prevent or cure\nbreaches of the provisions of this Agreement and to enforce specifically the\nterms and provisions hereof or thereof, this being in addition to any other\nremedy to which any of them may be entitled by law or equity.\n\n            Section 8.3. ENTIRE AGREEMENT; AMENDMENT. The Transaction Documents\ncontain the entire understanding of the parties with respect to the matters\ncovered in the Transaction Documents. No provision of this Agreement may be\nwaived or amended other than by a written instrument signed by the party against\nwhom enforcement of any such amendment or waiver is sought and no condition to\nclosing any Draw Down in favor of the Purchaser may be waived by the Purchaser.\n\n\n                                       23\n\n\n            Section 8.4. NOTICES. Any notice, demand, request, waiver or other\ncommunication required or permitted to be given hereunder shall be in writing\nand shall be effective (a) upon hand delivery or facsimile at the address or\nnumber designated below (if delivered on a business day during normal business\nhours where such notice is to be received), or the first business day following\nsuch delivery (if delivered other than on a business day during normal business\nhours where such notice is to be received) or (b) on the second business day\nfollowing the date of mailing by express courier service, fully prepaid,\naddressed to such address, or upon actual receipt of such mailing, whichever\nshall first occur. The addresses for such communications shall be:\n\nIf to the Company:            1250 Broadway\n                              New York, New York 10001\n                              Attn:  David Moore, CEO\n                              Tel: (212) 231-7100\n                              Fax:  (212) 764-1774\n\nWith copies to:               Proskauer Rose LLP\n(which shall not constitute   1685 Broadway\nnotice)                       New York, New York 10036-8299\n                              Attn: Ronald Papa, Esq.\n                              Tel: (212) 969-3000\n                              Fax: (212) 969-2000\n\nIf to Purchaser:              c\/o Beacon Capital Management\n                              Harbour House, 2nd Floor\n                              Waterfront Drive\n                              Road Town, Tortola\n                              British Virgin Islands\n                              Attn: David Sims\n                              Fax: (284) 494-4090\n\nwith copies to:               Epstein Becker &amp; Green P.C.\n(which shall not constitute   250 Park Avenue\nnotice)                       New York, NY  10177-1211\n                              Tel:  (212) 351-3771\n                              Fax:  (212) 661-0989\n                              Attn:  Robert F. Charron\n\n            Any party hereto may from time to time change its address for\nnotices by giving written notice of such changed address to the other party\nhereto in accordance herewith. \n\n            Section 8.5. WAIVERS. No waiver by either party of any default with\nrespect to any provision, condition or requirement of this Agreement shall be\ndeemed to be a continuing waiver in the future or a waiver of any other\nprovisions, condition or requirement hereof, nor \n\n\n                                       24\n\n\nshall any delay or omission of any party to exercise any right hereunder in any\nmanner impair the exercise of any such right accruing to it thereafter.\n\n            Section 8.6. HEADINGS. The article, section and subsection headings\nin this Agreement are for convenience only and shall not constitute a part of\nthis Agreement for any other purpose and shall not be deemed to limit or affect\nany of the provisions hereof.\n\n            Section 8.7. SUCCESSORS AND ASSIGNS. This Agreement shall be binding\nupon and inure to the benefit of the parties and their successors and assigns.\nThe parties hereto may not amend this Agreement or any rights or obligations\nhereunder without the prior written consent of the Company and each Purchaser to\nbe affected by the amendment. After Initial Closing, the assignment by a party\nto this Agreement of any rights hereunder shall not affect the obligations of\nsuch party under this Agreement.\n\n            Section 8.8. NO THIRD PARTY BENEFICIARIES.This Agreement is intended\nfor the benefit of the parties hereto and their respective permitted successors\nand assigns and is not for the benefit of, nor may any provision hereof be\nenforced by, any other person.\n\n            Section 8.9. GOVERNING LAW\/ARBITRATION. This Agreement shall be\ngoverned by and construed in accordance with the internal laws of the State of\nNew York, without giving effect to the choice of law provisions. The Company and\nthe Purchaser agree to submit themselves to the IN PERSONAM jurisdiction of the\nstate and federal courts situated within the Southern District of the State of\nNew York with regard to any controversy arising out of or relating to this\nAgreement. Any dispute under this Agreement or any Exhibit attached hereto shall\nbe submitted to arbitration under the American Arbitration Association (the\n\"AAA\") in New York City, New York, and shall be finally and conclusively\ndetermined by the decision of a board of arbitration consisting of three (3)\nmembers (hereinafter referred to as the \"Board of Arbitration\") selected as\naccording to the rules governing the AAA. The Board of Arbitration shall meet on\nconsecutive business days in New York City, New York, and shall reach and render\na decision in writing (concurred in by a majority of the members of the Board of\nArbitration) with respect to the amount, if any, which the losing party is\nrequired to pay to the other party in respect of a claim filed. In connection\nwith rendering its decisions, the Board of Arbitration shall adopt and follow\nthe laws of the State of New York. To the extent practical, decisions of the\nBoard of Arbitration shall be rendered no more than thirty (30) calendar days\nfollowing commencement of proceedings with respect thereto. The Board of\nArbitration shall cause its written decision to be delivered to all parties\ninvolved in the dispute. The Board of Arbitration shall be authorized and is\ndirected to enter a default judgment against any party refusing to participate\nin the arbitration proceeding within thirty days of any deadline for such\nparticipation. Any decision made by the Board of Arbitration (either prior to or\nafter the expiration of such thirty (30) calendar day period) shall be final,\nbinding and conclusive on the parties to the dispute, and entitled to be\nenforced to the fullest extent permitted by law and entered in any court of\ncompetent jurisdiction. The prevailing party shall be awarded its costs,\nincluding attorneys' fees, from the non-prevailing party as part of the\narbitration award. Any party shall have the right to seek injunctive relief from\nany court of competent jurisdiction in any case where such relief is available.\nThe prevailing party in such injunctive \n\n\n                                       25\n\n\naction shall be awarded its costs, including reasonable attorneys' fees, from\nthe non-prevailing party.\n\n            Section 8.10. COUNTERPARTS. This Agreement may be executed in any\nnumber of counterparts, all of which taken together shall constitute one and the\nsame instrument and shall become effective when counterparts have been signed by\neach party and delivered to the other parties hereto, it being understood that\nall parties need not sign the same counterpart. Execution may be made by\ndelivery by facsimile.\n\n            Section 8.11. PUBLICITY. Neither the Company nor the Purchaser shall\nissue any press release or otherwise make any public statement or announcement\nwith respect to this Agreement or the transactions contemplated hereby or the\nexistence of this Agreement, without the prior written consent of the other\nparty. After the Initial Closing, the Company may issue a press release or\notherwise make a public statement or announcement with respect to this Agreement\nor the transactions contemplated hereby or the existence of this Agreement;\nPROVIDED, HOWEVER, that prior to issuing any such press release, making any such\npublic statement or announcement, the Company obtains the prior consent of the\nPurchaser, which consent shall not be unreasonably withheld or delayed.\n\n            Section 8.12. SEVERABILITY. The provisions of this Agreement are\nseverable and, in the event that The Board of Arbitration or any court or\nofficials of any regulatory agency of competent jurisdiction shall determine\nthat any one or more of the provisions or part of the provisions contained in\nthis Agreement shall, for any reason, be held to be invalid, illegal or\nunenforceable in any respect, such invalidity, illegality or unenforceability\nshall not affect any other provision or part of a provision of this Agreement\nand this Agreement shall be reformed and construed as if such invalid or illegal\nor unenforceable provision, or part of such provision, had never been contained\nherein, so that such provisions would be valid, legal and enforceable to the\nmaximum extent possible, so long as such construction does not materially\nadversely effect the economic rights of either party hereto.\n\n            Section 8.13. FURTHER ASSURANCES. From and after the date of this\nAgreement, upon the request of the Purchaser or the Company, each of the Company\nand the Purchaser shall execute and deliver such instruments, documents and\nother writings as may be reasonably necessary or desirable to confirm and carry\nout and to effectuate fully the intent and purposes of this Agreement.\n\n            Section 8.14. EFFECTIVENESS OF AGREEMENT. This Agreement shall\nbecome effective only upon satisfaction of the conditions precedent to the\nInitial Closing set forth in Article I of the Escrow Agreement.\n\n                                    ARTICLE 9\n\n                                   DEFINITIONS\n\n            Section 9.1. Certain Definitions.\n\n\n                                       26\n\n\n                  (a) \"COMMENCEMENT DATE\" shall have the meaning assigned to\n      such term in Section 5.1(f) hereof.\n\n                  (b) \"COMMITMENT AMOUNT\" shall have the meaning assigned to\n      such term in Section 1.1 hereof.\n\n                  (c) \"COMMITMENT PERIOD\" shall mean the period commencing on\n      the Effective Date and expiring on the earliest to occur of (i) the date\n      on which the Purchaser shall have exercised an aggregate amount of Draw\n      Downs equal to the Commitment Amount, (ii) the date this Agreement is\n      terminated in accordance with the terms hereof, or (iii) the date\n      occurring eighteen (18) months from the Effective Date.\n\n                  (d) \"COMMON STOCK\" shall mean the Company's common stock,\n      $0.01 par value per share.\n\n                  (e) \"DRAW DOWN\" shall have the meaning assigned to such term\n      in Section 5.1(a) hereof.\n\n                  (f) \"DRAW DOWN NOTICE\" shall have the meaning assigned to such\n      term in Section 5.1(f) hereof.\n\n                  (g) \"DRAW DOWN PRICING PERIOD\" shall mean a period of twenty\n      (20) consecutive Trading Days beginning on the date specified in the Draw\n      Down Notice (as defined in Section 5.1(f) herein); PROVIDED, HOWEVER, the\n      Draw Down Pricing Period shall not begin before the day on which receipt\n      of such notice is confirmed by the Purchaser.\n\n                  (h) \"EFFECTIVE DATE\" shall mean the date the Registration\n      Statement of the Company covering the Shares being subscribed for hereby\n      is declared effective by the SEC.\n\n                  (i) \"EXCHANGE ACT\" shall mean the Securities Exchange Act of\n      1934, as amended, and the rules and regulations promulgated thereunder.\n\n                  (j) \"GAAP\" shall mean the United States Generally Accepted\n      Accounting Principles as those conventions, rules and procedures are\n      determined by the Financial Accounting Standards Board and its predecessor\n      agencies.\n\n                  (k) \"INITIAL CLOSING\" shall have the meaning assigned to such\n      term in Section 1.2 hereof.\n\n                  (l) \"INITIAL CLOSING DATE\" shall have the meaning assigned to\n      such term in Section 1.2 hereof.\n\n                  (m) \"INVESTMENT AMOUNT\" shall have the meaning assigned to\n      such term in Section 5.1(f) hereof.\n\n\n                                       27\n\n\n                  (n) \"MATERIAL ADVERSE EFFECT\" shall mean any adverse effect on\n      the business, operations, properties, or financial condition of the\n      Company that is material and adverse to the Company and its subsidiaries\n      and affiliates, taken as a whole and\/or any condition, circumstance, or\n      situation that would prohibit or otherwise materially interfere with the\n      ability of the Company to perform any of its material obligations under\n      this Agreement or the Registration Rights Agreement or to perform its\n      obligations under any other Material Agreement (as defined in Section\n      2.1(u)).\n\n                  (o) \"PRINCIPAL MARKET\" shall mean initially the Nasdaq\n      National Market and shall include the American Stock Exchange, the Nasdaq\n      Small-Cap Market and the New York Stock Exchange if the Company becomes\n      listed and trades on such market or exchange after the date hereof.\n\n                  (p) \"PURCHASE PRICE\" shall mean, with respect to Draw Down\n      Shares purchased during each applicable Settlement Period, 96.5% (the\n      \"Purchase Price Percentage\") of the VWAP on the date in question; EXCEPT\n      THAT, for each $50,000,000 increase in the Company's average market cap\n      (calculated by multiplying the number of shares of Common Stock issued and\n      outstanding by the VWAP of the Common Stock (the \"Market Cap\")) above\n      $150,000,000 during the applicable Market Cap Period (as defined below),\n      the Purchase Price Percentage as to such Draw Down only shall be increased\n      by 0.25% until the Purchase Price Percentage equals 97%; PROVIDED,\n      HOWEVER, each increase in the Purchase Price Percentage shall only occur\n      if the corresponding increase in the Market Cap is maintained for at least\n      the twenty (20) consecutive Trading Days immediately prior to the\n      applicable Commencement Date (the \"Market Cap Period\"). By way of example,\n      if the Market Cap on any Trading Day during the Market Cap Period is\n      between $1 and $199,999,999, the Purchase Price Percentage shall be 96.5%.\n      If the Market Cap is between $200,000,000 and $249,999,999 on each day\n      during the entire Market Cap Period, the Purchase Price Percentage shall\n      be 96.75%. If the Market Cap at any time during the subsequent Market Cap\n      Period is less than $200,000,000, the Purchase Price Percentage shall\n      return to 96.5% as to the subsequent Draw Down Pricing Period.\n\n                  (q) \"REGISTRATION Statement\" shall mean the registration\n      statement under the Securities Act, to be filed with the Securities and\n      Exchange Commission for the registration of the Shares pursuant to the\n      Registration Rights Agreement attached hereto as EXHIBIT A (the\n      \"Registration Rights Agreement).\n\n                  (r) \"SEC\" shall mean the Securities and Exchange Commission.\n\n                  (s) \"SEC DOCUMENTS\" shall mean the Company's latest Form 10-K\n      or Form 10-KSB as of the time in question, all Forms 10-Q or 10-QSB and\n      8-K filed thereafter, and the Proxy Statement for its latest fiscal year\n      as of the time in question until such time as the Company no longer has an\n      obligation to maintain the effectiveness of a Registration Statement as\n      set forth in the Registration Rights Agreement.\n\n\n                                       28\n\n\n                  (t) \"SECURITIES ACT\" shall mean the Securities and Exchange\n      Act of 1934, as amended, and the rules and regulations promulgated\n      thereunder.\n\n                  (u) \"SETTLEMENT\" shall mean the delivery of the Draw Down\n      Shares into the Purchaser's DTC account in exchange for payment therefor.\n\n                  (v) \"SETTLEMENT DATE\" shall have the meaning assigned to such\n      term in Section 5.1(b).\n\n                  (w) \"SETTLEMENT PERIOD\" shall have the meaning assigned to\n      such term in Section 5.1(b).\n\n                  (x) \"SHARES\" shall mean, collectively, the shares of Common\n      Stock of the Company being subscribed for hereunder (the \"Draw Down\n      Shares\") and the shares of Common Stock issuable upon exercise of the\n      Warrant (the \"Warrant Shares\").\n\n                  (y) \"THRESHOLD PRICE\" shall mean the price per Share\n      designated by the Company as the lowest VWAP during any Draw Down Pricing\n      Period at which the Company will sell its Common Stock in accordance with\n      this Agreement.\n\n                  (z) \"TRADING DAY\" shall mean any day on which the Principal\n      Market is open for business.\n\n                  (aa) \"TRANSACTION DOCUMENTS\" shall mean this Agreement, the\n      Registration Rights Agreement and the Escrow Agreement.\n\n                  (bb) \"VWAP\" shall mean the daily volume weighted average price\n      of the Company's Common Stock on the Principal Market as reported by\n      Bloomberg Financial L.P. (based on a trading day from 9:30 a.m. Eastern\n      Time to 4:02 p.m. Eastern Time) using the VAP function on the date in\n      question.\n\n                  (cc) \"WARRANT\" shall mean the warrant issued to the Purchaser\n      pursuant to Section 4.2(f) hereof.\n\n\n                            [SIGNATURE PAGE FOLLOWS]\n\n\n                                       29\n\n\n            IN WITNESS WHEREOF, the parties hereto have caused this Agreement to\nbe duly executed by their respective authorize officer as of this 21st day of\nMarch, 2001.\n\n                                        24\/7 MEDIA, INC.\n\n\n                                        By: \/s\/ DAVID J. MOORE_\n                                            ------------------------------------\n                                            David Moore, Chief Executive Officer\n\n\n                                        MAYA COVE HOLDINGS INC.\n\n\n                                        By: \/s\/ DAVID SIMS\n                                            ------------------------------------\n                                            David Sims, Director\n\n\n                                       30\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6536],"corporate_contracts_industries":[9503],"corporate_contracts_types":[9622,9627],"class_list":["post-43355","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-247-media-inc","corporate_contracts_industries-services__advertising","corporate_contracts_types-planning","corporate_contracts_types-planning__purchase"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43355","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43355"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43355"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43355"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43355"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}