{"id":43582,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/securities-purchase-agreement-transgenomic-inc.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"securities-purchase-agreement-transgenomic-inc","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/securities-purchase-agreement-transgenomic-inc.html","title":{"rendered":"Securities Purchase Agreement – Transgenomic Inc."},"content":{"rendered":"

SECURITIES PURCHASE AGREEMENT<\/strong><\/p>\n

\n

This Securities Purchase Agreement (this “Agreement<\/em>“) is dated as of
\nFebruary 2, 2012 by and among Transgenomic, Inc., a Delaware corporation (the
\n“Company<\/em>“), and each purchaser identified on the signature pages hereto
\n(each, including its successors and assigns, a “Purchaser<\/em>” and
\ncollectively, the “Purchasers<\/em>“).<\/p>\n<\/p>\n

RECITALS<\/p>\n

\n

A. The Company and each Purchaser is executing and delivering this Agreement
\nin reliance upon the exemption from securities registration afforded by Section
\n4(2) of the Securities Act of 1933, as amended (the “Securities Act<\/em>“),
\nand Rule 506 of Regulation D (“Regulation D<\/em>“) as promulgated by the
\nUnited States Securities and Exchange Commission (the “Commission<\/em>“)
\nunder the Securities Act.<\/p>\n<\/p>\n

B. Each Purchaser, severally and not jointly, wishes to purchase, and the
\nCompany wishes to sell, upon the terms and conditions stated in this Agreement,
\n(i) that aggregate number of shares of common stock, par value $0.01 per share
\n(the “Common Stock<\/em>“), of the Company, set forth below such Purchaser153s
\nname on the signature page of this Agreement (which aggregate amount for all
\nPurchasers together shall be 19,000,000 shares of Common Stock and shall be
\ncollectively referred to herein as the “Shares<\/em>“) and (ii) warrants, in
\nsubstantially the form attached hereto as Exhibit A<\/u> (the
\n“Warrants<\/em>“), to acquire up to that number of additional shares of
\nCommon Stock equal to 50% of the number of Shares purchased by such Purchaser,
\nrounded up to the nearest whole share (the shares of Common Stock issuable upon
\nexercise of or otherwise pursuant to the Warrants collectively are referred to
\nherein as the “Warrant Shares<\/em>“).<\/p>\n<\/p>\n

C. The Shares, the Warrants and the Warrant Shares collectively are referred
\nto herein as the “Securities<\/em>“.<\/p>\n<\/p>\n

D. The Company has engaged Craig-Hallum Capital Group LLC to act as exclusive
\nplacement agent (the “Placement Agent<\/em>“) for the offering of the Shares
\nand Warrants on a “best efforts” basis.<\/p>\n<\/p>\n

E. Contemporaneously with the execution and delivery of this Agreement, the
\nparties hereto are executing and delivering a Registration Rights Agreement,
\nsubstantially in the form attached hereto as Exhibit B<\/u> (the
\n“Registration Rights Agreement<\/em>“), pursuant to which, among other
\nthings, the Company will agree to provide certain registration rights with
\nrespect to the Shares and the Warrant Shares under the Securities Act and the
\nrules and regulations promulgated thereunder and applicable state securities
\nlaws.<\/p>\n<\/p>\n

NOW, THEREFORE, IN CONSIDERATION of the mutual covenants contained in this
\nAgreement, and for other good and valuable consideration, the receipt and
\nadequacy of which are hereby acknowledged, the Company and each Purchaser hereby
\nagree as follows:<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Article I<\/p>\n

\n

DEFINITIONS<\/p>\n

\n

1.1 Definitions<\/u>. In addition to the terms defined elsewhere in this
\nAgreement, for all purposes of this Agreement, the following terms shall have
\nthe meanings indicated in this Section 1.1:<\/p>\n<\/p>\n

“Accredited Investor Questionnaire<\/em>” means the Accredited Investor
\nQuestionnaire set forth as Exhibit C-1<\/u> hereto.<\/p>\n<\/p>\n

“Action<\/em>” means any action, suit, inquiry, notice of violation,
\nproceeding (including any partial proceeding such as a deposition) or
\ninvestigation pending or, to the Company153s Knowledge, threatened against the
\nCompany or any of their respective properties or any officer, director or
\nemployee of the Company acting in his or her capacity as an officer, director or
\nemployee before or by any federal, state, county, local or foreign court,
\narbitrator, governmental or administrative agency, regulatory authority, stock
\nmarket, stock exchange or trading facility.<\/p>\n<\/p>\n

“Affiliate<\/em>” means, with respect to any Person, any other Person
\nthat, directly or indirectly through one or more intermediaries, Controls, is
\ncontrolled by or is under common control with such Person, as such terms are
\nused in and construed under Rule 405 under the Securities Act. With respect to a
\nPurchaser, any investment fund or managed account that is managed on a
\ndiscretionary basis by the same investment manager as such Purchaser will be
\ndeemed to be an Affiliate of such Purchaser.<\/p>\n<\/p>\n

“Agreement<\/em>” has the meaning set forth in the Preamble.<\/p>\n<\/p>\n

“Board of Directors<\/em>” means the board of directors of the Company.\n<\/p>\n<\/p>\n

“Business Day<\/em>” means any day except Saturday, Sunday, any day which
\nis a federal legal holiday in the United States or any day on which banking
\ninstitutions in the State of New York are authorized or required by law or other
\ngovernmental action to close.<\/p>\n<\/p>\n

“Buy-In<\/em>” has the meaning set forth in Section 4.1(f).<\/p>\n<\/p>\n

“Buy-In Price<\/em>” has the meaning set forth in Section 4.1(f).<\/p>\n<\/p>\n

“Closing<\/em>” means the closing of the purchase and sale of the Shares
\nand the Warrants on the Closing Date pursuant to Section 2.1.<\/p>\n<\/p>\n\n\n\n\n
\n

2<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

“Closing Bid Price”<\/em> means, for any security as of any date, (a) the
\nlast reported closing bid price per share for such security on the Principal
\nTrading Market, as reported by Bloomberg Financial Markets, or, (b) if the
\nPrincipal Trading Market begins to operate on an extended hours basis and does
\nnot designate the closing bid price then the last bid price of such security
\nprior to 4:00 p.m., New York City time, as reported by Bloomberg Financial
\nMarkets, or (c) if the foregoing do not apply, the last closing price of such
\nsecurity in the over-the-counter market on the electronic bulletin board for
\nsuch security as reported by Bloomberg Financial Markets, or, (d) if no closing
\nbid price is reported for such security by Bloomberg Financial Markets, the
\naverage of the bid prices of any market makers for such security as reported in
\nthe “pink sheets” by Pink Sheets LLC. If the Closing Bid Price cannot be
\ncalculated for a security on a particular date on any of the foregoing bases,
\nthe Closing Bid Price of such security on such date shall be the fair market
\nvalue as mutually determined by the Company and the holder of such security. If
\nthe Company and such holder are unable to agree upon the fair market value of
\nsuch security, then the Board of Directors shall use its good faith judgment to
\ndetermine the fair market value. The Board of Directors153 determination shall be
\nbinding on all parties absent demonstrable error.. All such determinations shall
\nbe appropriately adjusted for any stock dividend, stock split, stock combination
\nor other similar transaction during the applicable calculation period.<\/p>\n<\/p>\n

“Closing Date<\/em>” means the Trading Day when all of the Transaction
\nDocuments have been executed and delivered by the applicable parties thereto,
\nand all of the conditions set forth in Sections 2.1, 2.2, 5.1 and 5.2 hereof are
\nsatisfied or waived, as the case may be, or such other date as the parties may
\nagree.<\/p>\n<\/p>\n

“Commission<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

“Common Stock<\/em>” has the meaning set forth in the Recitals, and also
\nincludes any other class of securities into which the Common Stock may hereafter
\nbe reclassified or changed.<\/p>\n<\/p>\n

“Common Stock Equivalents<\/em>” means any securities of the Company which
\nwould entitle the holder thereof to acquire at any time Common Stock, including,
\nwithout limitation, any debt, preferred stock, rights, options, warrants or
\nother instrument that is at any time convertible into or exchangeable for, or
\notherwise entitles the holder thereof to receive, Common Stock or other
\nsecurities that entitle the holder to receive, directly or indirectly, Common
\nStock.<\/p>\n<\/p>\n

“Company<\/em>” has the meaning set forth in the Preamble.<\/p>\n<\/p>\n

“Company Counsel<\/em>” means Husch Blackwell LLP, with offices located at
\n1620 Dodge Street, Omaha, Nebraska 68102.<\/p>\n<\/p>\n

“Company Deliverables<\/em>” has the meaning set forth in Section 2.2(a).\n<\/p>\n<\/p>\n

“Company153s Knowledge<\/em>” means with respect to any statement made to
\nthe Company153s Knowledge, that the statement is based upon the actual knowledge
\nof the officers of the Company having responsibility for the matter or matters
\nthat are the subject of the statement, after due inquiry.<\/p>\n<\/p>\n

“Control<\/em>” (including the terms “controlling”, “controlled by” or
\n“under common control with”) means the possession, direct or indirect, of the
\npower to direct or cause the direction of the management and policies of a
\nPerson, whether through the ownership of voting securities, by contract or
\notherwise.<\/p>\n<\/p>\n

“Deadline Date<\/em>” has the meaning set forth in Section 4.1(f).<\/p>\n<\/p>\n

“Disclosure Materials<\/em>” has the meaning set forth in Section 3.1(h).\n<\/p>\n<\/p>\n

“Disclosure Schedules<\/em>” has the meaning set forth in Section 3.1.<\/p>\n<\/p>\n\n\n\n\n
\n

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<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

“DTC<\/em>” has the meaning set forth in Section 4.1(c).<\/p>\n<\/p>\n

“Effective Date<\/em>” means the date on which the initial Registration
\nStatement required by Section 2(a) of the Registration Rights Agreement is first
\ndeclared effective by the Commission.<\/p>\n<\/p>\n

“Effectiveness Deadline<\/em>” means the date on which the initial
\nRegistration Statement is required to be declared effective by the Commission
\nunder the terms of the Registration Rights Agreement.<\/p>\n<\/p>\n

“Environmental Laws<\/em>” has the meaning set forth in Section 3.1(dd).\n<\/p>\n<\/p>\n

“Evaluation Date<\/em>” has the meaning set forth in Section 3.1(t).<\/p>\n<\/p>\n

“Exchange Act<\/em>” means the Securities Exchange Act of 1934, as
\namended, or any successor statute, and the rules and regulations promulgated
\nthereunder.<\/p>\n<\/p>\n

“FDA<\/em>” has the meaning set forth in Section 3.1(ll).<\/p>\n<\/p>\n

“GAAP<\/em>” means U.S. generally accepted accounting principles, as
\napplied by the Company.<\/p>\n<\/p>\n

“Governmental Licenses<\/em>” has the meaning set forth in Section
\n3.1(ll).<\/p>\n<\/p>\n

“Intellectual Property Rights<\/em>” has the meaning set forth in Section
\n3.1(p).<\/p>\n<\/p>\n

“Irrevocable Transfer Agent Instructions<\/em>” means, with respect to the
\nCompany, the Irrevocable Transfer Agent Instructions, in substantially the form
\nof Exhibit E<\/u>, executed by the Company and delivered to and acknowledged
\nin writing by the Transfer Agent.<\/p>\n<\/p>\n

“Legend Removal Date<\/em>” has the meaning set forth in Section 4.1(c).\n<\/p>\n<\/p>\n

“Lien<\/em>” means any lien, charge, deed of trust, claim, encumbrance,
\nsecurity interest, priority, right or preferential arrangement of any kind or
\nnature whatsoever (excluding preferred stock and equity related preferences) or
\nother restrictions of any kind.<\/p>\n<\/p>\n

“Material Adverse Effect<\/em>” means a material adverse effect on the
\nresults of operations, assets, prospects, business or financial condition of the
\nCompany, except that any of the following, either alone or in combination, shall
\nnot be deemed a Material Adverse Effect: (i) effects caused by changes or
\ncircumstances affecting general market conditions in the U.S. economy or which
\nare generally applicable to the industry in which the Company operates, provided
\nthat such effects are not borne disproportionately by the Company, (ii) effects
\ncaused by earthquakes, hostilities, acts of war, sabotage or terrorism or
\nmilitary actions or any escalation or material worsening of any such
\nhostilities, acts of war, sabotage or terrorism or military actions existing as
\nof the date hereof or (iii) effects resulting from or relating to the
\nannouncement or disclosure of the sale of Securities or other transactions
\ncontemplated by this Agreement.<\/p>\n<\/p>\n

“Material Contract<\/em>” means any contract of the Company that has been
\nfiled or was required to have been filed as an exhibit to the SEC Reports
\npursuant to Item 601(b)(4) or Item 601(b)(10) of Regulation S-K.<\/p>\n<\/p>\n\n\n\n\n
\n

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<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

“Material Permits<\/em>” has the meaning set forth in Section 3.1(n).<\/p>\n<\/p>\n

“New York Courts<\/em>” means the state and federal courts sitting in the
\nCity of New York, Borough of Manhattan.<\/p>\n<\/p>\n

“OFAC<\/em>” has the meaning set forth in Section 3.1(kk).<\/p>\n<\/p>\n

“Outside Date<\/em>” means the tenth (10th<\/sup>) Business Day
\nfollowing the date of this Agreement.<\/p>\n<\/p>\n

“Person<\/em>” means an individual, corporation, partnership, limited
\nliability company, trust, business trust, association, joint stock company,
\njoint venture, sole proprietorship, unincorporated organization, governmental
\nauthority or any other form of entity not specifically listed herein.<\/p>\n<\/p>\n

“Placement Agent<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

“Press Release<\/em>” has the meaning set forth in Section 4.6.<\/p>\n<\/p>\n

“Principal Trading Market<\/em>” means the Trading Market on which the
\nCommon Stock is primarily listed on and quoted for trading, which, as of the
\ndate of this Agreement and the Closing Date, shall be the OTCQB Market.<\/p>\n<\/p>\n

“Proceeding<\/em>” means an action, claim, suit, investigation or
\nproceeding (including, without limitation, an investigation or partial
\nproceeding, such as a deposition), whether commenced or threatened.<\/p>\n<\/p>\n

“Purchase Price<\/em>” means $1.00 per unit, each such unit comprised of
\none share of Common Stock and a Warrant to purchase 0.5 Warrant Shares (subject
\nto adjustment for reverse and forward stock splits, stock dividends, stock
\ncombinations and other similar transactions of the Common Stock that occur after
\nthe date of this Agreement.)<\/p>\n<\/p>\n

“Purchaser<\/em>” or “Purchasers<\/em>” has the meaning set forth in
\nthe Recitals.<\/p>\n<\/p>\n

“Purchaser Deliverables<\/em>” has the meaning set forth in Section
\n2.2(b).<\/p>\n<\/p>\n

“Purchaser Party<\/em>” has the meaning set forth in Section 4.10.<\/p>\n<\/p>\n

“Registration Rights Agreement<\/em>” has the meaning set forth in the
\nRecitals.<\/p>\n<\/p>\n

“Registration Statement<\/em>” means a registration statement meeting the
\nrequirements set forth in the Registration Rights Agreement and covering the
\nresale by the Purchasers of the Registrable Securities (as defined in the
\nRegistration Rights Agreement).<\/p>\n<\/p>\n

“Regulation D<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

“Required Approvals<\/em>” has the meaning set forth in Section 3.1(e).\n<\/p>\n<\/p>\n\n\n\n\n
\n

5<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

“Rule 144<\/em>” means Rule 144 promulgated by the Commission pursuant to
\nthe Securities Act, as such Rule may be amended from time to time, or any
\nsimilar rule or regulation hereafter adopted by the Commission having
\nsubstantially the same effect as such Rule.<\/p>\n<\/p>\n

“SEC Reports<\/em>” has the meaning set forth in Section 3.1(h).<\/p>\n<\/p>\n

“Secretary153s Certificate<\/em>” has the meaning set forth in Section
\n2.2(a)(vii).<\/p>\n<\/p>\n

“Securities<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

“Securities Act<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

“Shares<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

“Short Sales<\/em>” include, without limitation, (i) all “short sales” as
\ndefined in Rule 200 promulgated under Regulation SHO under the Exchange Act,
\nwhether or not against the box, and all types of direct and indirect stock
\npledges, forward sale contracts, options, puts, calls, short sales, swaps, “put
\nequivalent positions” (as defined in Rule 16a-1(h) under the Exchange Act) and
\nsimilar arrangements (including on a total return basis), and (ii) sales and
\nother transactions through non-U.S. broker dealers or foreign regulated brokers
\n(but shall not be deemed to include the location and\/or reservation of
\nborrowable shares of Common Stock).<\/p>\n<\/p>\n

“Stock Certificates<\/em>” has the meaning set forth in Section
\n2.2(a)(ii).<\/p>\n<\/p>\n

“Subscription Amount<\/em>” means, with respect to each Purchaser, the
\naggregate amount to be paid for the Shares and the related Warrants purchased
\nhereunder as indicated on such Purchaser153s signature page to this Agreement next
\nto the heading “Aggregate Purchase Price (Subscription Amount)” in United States
\ndollars and in immediately available funds.<\/p>\n<\/p>\n

“Subsidiary<\/em>” means any subsidiary of the Company as set forth on
\nSchedule 3.1(a)<\/u>, and shall, where applicable, include any subsidiary of
\nthe Company formed or acquired after the date hereof.<\/p>\n<\/p>\n

“Trading Affiliate<\/em>” has the meaning set forth in Section 3.2(h).<\/p>\n<\/p>\n

“Trading Day<\/em>” means (i) a day on which the Common Stock is listed or
\nquoted and traded on its Principal Trading Market (other than the OTCMarkets),
\nor (ii) if the Common Stock is not listed on a Trading Market (other than the
\nOTCMarkets), a day on which the Common Stock is traded in the over-the-counter
\nmarket, as reported by the OTCMarkets, or (iii) if the Common Stock is not
\nquoted on any Trading Market, a day on which the Common Stock is quoted in the
\nover-the-counter market as reported in the “pink sheets” by Pink Sheets LLC (or
\nany similar organization or agency succeeding to its functions of reporting
\nprices); provided<\/em>, that in the event that the Common Stock is not
\nlisted or quoted as set forth in (i), (ii) and (iii) hereof, then Trading Day
\nshall mean a Business Day.<\/p>\n<\/p>\n

“Trading Market<\/em>” means whichever of the New York Stock Exchange, the
\nNYSE Amex, the NASDAQ Global Select Market, the NASDAQ Global Market, the NASDAQ
\nCapital Market or the OTCMarkets on which the Common Stock is listed or quoted
\nfor trading on the date in question.<\/p>\n<\/p>\n\n\n\n\n
\n

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<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

“Transaction Documents<\/em>” means this Agreement, the schedules and
\nexhibits attached hereto, the Warrants, the Registration Rights Agreement, the
\nIrrevocable Transfer Agent Instructions and any other documents or agreements
\nexplicitly contemplated hereunder.<\/p>\n<\/p>\n

“Transfer Agent<\/em>” means Wells Fargo Bank Minnesota, N.A. – Shareowner
\nServices, the current transfer agent of the Company, with a mailing address of
\nP.O. Box 64854, St. Paul, MN 55164-0854, and a telephone number of (800)
\n478-9715, or any successor transfer agent for the Company.<\/p>\n<\/p>\n

“Warrants<\/em>” has the meaning set forth in the Recitals. The Placement
\nAgent and\/or its designees are also receiving placement agent warrants as
\ncompensation for services rendered in connection with the transactions set forth
\nherein, which warrants shall also constitute “Warrants<\/em>” for all
\npurposes hereunder.<\/p>\n<\/p>\n

“Warrant Shares<\/em>” has the meaning set forth in the Recitals.<\/p>\n<\/p>\n

Article II<\/p>\n

\n

PURCHASE AND SALE<\/p>\n

\n

2.1 Closing<\/u>.<\/p>\n<\/p>\n

(a) Amount<\/u>. Subject to the terms and conditions set forth in this
\nAgreement, at the Closing, the Company shall issue and sell to each Purchaser,
\nand each Purchaser shall, severally and not jointly, purchase from the Company,
\nsuch number of units equal to the quotient resulting from dividing (i) the
\nSubscription Amount for such Purchaser as indicated below such Purchaser153s name
\non its signature page to this Agreement by (ii) the Purchase Price, rounded down
\nto the nearest whole Share. Warrants shall have an exercise price equal to $1.25
\nper Warrant Share, subject to adjustment as provided in such Warrants.<\/p>\n<\/p>\n

(b) Closing<\/u>. The Closing of the purchase and sale of the Shares and
\nWarrants shall take place at the offices of Goodwin Procter LLP, The New York
\nTimes Building, 620 Eighth Avenue, New York, New York 10018 on the Closing Date
\nor at such other location(s) or remotely by facsimile transmission or other
\nelectronic means as the parties may mutually agree.<\/p>\n<\/p>\n

(c) Form of Payment<\/u>. Except as may otherwise be agreed to among the
\nCompany and one or more of the Purchasers, on or prior to the Business Day
\nimmediately prior to the Closing Date, each Purchaser shall wire its
\nSubscription Amount, in United States dollars and in immediately available
\nfunds, to an escrow account established by the Placement Agent (the aggregate
\namounts received being held in escrow are referred to herein as the “Escrow
\nAmount<\/em>“). On the Closing Date, (a) the Escrow Amount constituting the
\naggregate Purchase Price shall be distributed as follows: (1) to the Placement
\nAgent, the fees and reimbursable expenses payable to the Placement Agent, and
\n(2) the balance of the aggregate Purchase Price to the Company, (b) the Company
\nshall irrevocably instruct the Transfer Agent to deliver to each Purchaser one
\nor more stock certificates, free and clear of all restrictive and other legends
\n(except as expressly provided in Section 4.1(b) hereof), evidencing the number
\nof Shares such Purchaser is purchasing as is set forth on such Purchaser153s
\nsignature page to this Agreement next to the heading “Number of Shares to be
\nAcquired,” within three Trading Days after the Closing, and (c) the Company
\nshall deliver to each Purchaser one or more Warrants, free and clear of all
\nrestrictive and other legends (except as expressly provided in Section 4.1(b)
\nhereof), evidencing the number of Warrant Shares such Purchaser is entitled to
\npurchase as is set forth on such Purchaser153s signature page to this Agreement
\nnext to the heading “Underlying Shares Subject to Warrant,” within three Trading
\nDays after the Closing. Notwithstanding the foregoing, in the event a Purchaser
\nhas specified to the Company at the time of execution of this Agreement that it
\nshall settle “delivery versus payment”, the Company shall deliver the Shares and
\nWarrants to such Purchaser on or before the Closing Date and, upon receipt, the
\nPurchaser shall wire its Subscription Amount to an account designated in writing
\nby the Company.<\/p>\n<\/p>\n\n\n\n\n
\n

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<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

2.2 Closing Deliveries<\/u>. (a) On or prior to the Closing, the Company
\nshall issue, deliver or cause to be delivered to each Purchaser the following
\n(the “Company Deliverables<\/em>“):<\/p>\n<\/p>\n

(i) this Agreement, duly executed by the Company;<\/p>\n<\/p>\n

(ii) facsimile copies of one or more stock certificates, free and clear of
\nall restrictive and other legends (except as provided in Section 4.1(b) hereof),
\nevidencing the Shares subscribed for by such Purchaser hereunder, registered in
\nthe name of such Purchaser as set forth on the Stock Certificate Questionnaire
\nincluded as Exhibit C-2<\/u> hereto (the “Stock Certificates<\/em>“), with
\nthe original Stock Certificates delivered by the Transfer Agent within three
\nTrading Days of Closing (unless such Purchaser has specified to the Company at
\nthe time of execution of this Agreement that it shall settle “delivery versus
\npayment” in which case such original Stock Certificates shall be delivered on or
\nprior to the Closing Date);<\/p>\n<\/p>\n

(iii) facsimile copies of one or more Warrants, executed by the Company and
\nregistered in the name of such Purchaser as set forth on the Stock Certificate
\nQuestionnaire included as Exhibit C-2<\/u> hereto, pursuant to which such
\nPurchaser shall have the right to acquire such number of Warrant Shares equal to
\n50% of the number of Shares issuable to such Purchaser pursuant to Section
\n2.2(a)(ii), rounded up to the nearest whole share (provided, however,<\/em>
\nthat in the event any Purchasers are Affiliates of each other, all Shares
\npurchased by such Purchasers shall be aggregated together for the purpose of
\ndetermining the aggregate number of Warrant Shares subject to all Warrants
\npurchased by such Purchasers), on the terms set forth therein, with the original
\nWarrants delivered by the Company within three Trading Days of Closing (unless
\nsuch Purchaser has specified to the Company at the time of execution of this
\nAgreement that it shall settle “delivery versus payment” in which case such
\noriginal Warrants shall be delivered on or prior to the Closing Date);<\/p>\n<\/p>\n

(iv) a legal opinion of Company Counsel, dated as of the Closing Date and in
\nsubstantially the form attached hereto as Exhibit D<\/u>, executed by such
\ncounsel and addressed to the Purchasers and the Placement Agent;<\/p>\n<\/p>\n

(v) the Registration Rights Agreement, duly executed by the Company;<\/p>\n<\/p>\n

(vi) duly executed Irrevocable Transfer Agent Instructions acknowledged in
\nwriting by the Transfer Agent instructing the Transfer Agent to deliver, on an
\nexpedited basis, a certificate evidencing a number of Shares equal to such
\nPurchaser153s Subscription Amount divided by the Purchase Price, registered in the
\nname of such Purchaser;<\/p>\n<\/p>\n\n\n\n\n
\n

8<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(vii) a certificate of the Secretary of the Company (the “Secretary153s
\nCertificate<\/em>“), dated as of the Closing Date and in substantially the form
\nattached hereto as Exhibit F<\/u>;<\/p>\n<\/p>\n

(viii) the Compliance Certificate referred to in Section 5.1(h);<\/p>\n<\/p>\n

(ix) a certificate evidencing the formation and good standing of the Company
\nissued by the Secretary of State of the State of Delaware as of a date within
\nfive days of the Closing Date;<\/p>\n<\/p>\n

(x) a certificate evidencing the Company153s qualification as a foreign
\ncorporation and good standing issued by (i) the Secretary of State of the State
\nof California and (ii) the Secretary of State of the State of Nebraska as of a
\ndate within five days of the Closing Date; and<\/p>\n<\/p>\n

(xi) a certified copy of the certificate of incorporation of the Company, as
\ncertified by the Secretary of State of the State of Delaware, as of a date
\nwithin 10 days of the Closing Date;<\/p>\n<\/p>\n

(b) On or prior to the Closing, each Purchaser shall deliver or cause to be
\ndelivered to the Company (or the Placement Agent in the case of clause (ii)
\nbelow) the following, with respect to such Purchaser (the “Purchaser
\nDeliverables<\/em>“):<\/p>\n<\/p>\n

(i) this Agreement, duly executed by such Purchaser;<\/p>\n<\/p>\n

(ii) subject to the completion of Section 2.2(a)(ii) and (iii), its
\nSubscription Amount, in United States dollars and in immediately available
\nfunds, in the amount set forth as the “Purchase Price” indicated below such
\nPurchaser153s name on the applicable signature page hereto under the heading
\n“Aggregate Purchase Price (Subscription Amount)” by wire transfer to an escrow
\naccount established by the Placement Agent;<\/p>\n<\/p>\n

(iii) the Registration Rights Agreement, duly executed by such Purchaser; and\n<\/p>\n<\/p>\n

(iv) a fully completed and duly executed Accredited Investor Questionnaire,
\nsatisfactory to the Company, and Stock Certificate Questionnaire in the forms
\nattached hereto as Exhibits C-1<\/u> and C-2<\/u>, respectively.<\/p>\n<\/p>\n

Article III<\/p>\n

\n

REPRESENTATIONS AND WARRANTIES<\/p>\n

\n

3.1 Representations and Warranties of the Company<\/u>. Except as (i) set
\nforth in the schedules delivered herewith (the “Disclosure
\nSchedules<\/em>“), which Disclosure Schedules shall be deemed a part hereof and
\nshall qualify any representation made herein to the extent of the disclosure
\ncontained in the corresponding section of the Disclosure Schedules or other
\nrepresentations relating to the subject matter of such disclosures, or (ii)
\ndisclosed in the SEC Reports, the Company hereby represents and warrants as of
\nthe date hereof and the Closing Date (except for the representations and
\nwarranties that speak as of a specific date, which shall be made as of such
\ndate), to each of the Purchasers and to the Placement Agent:<\/p>\n<\/p>\n\n\n\n\n
\n

9<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(a) Subsidiaries<\/u>. The Company has no direct or indirect Subsidiaries
\nother than those listed in Schedule 3.1(a)<\/u> hereto. Except as disclosed in
\nSchedule 3.1(a)<\/u> hereto, the Company owns, directly or indirectly, all of
\nthe capital stock or comparable equity interests of each Subsidiary free and
\nclear of any and all Liens, and all the issued and outstanding shares of capital
\nstock or comparable equity interest of each Subsidiary are validly issued and
\nare fully paid, non-assessable and free of preemptive and similar rights to
\nsubscribe for or purchase securities.<\/p>\n<\/p>\n

(b) Organization and Qualification<\/u>. The Company and each of its
\nSubsidiaries is an entity duly incorporated or otherwise organized, validly
\nexisting and in good standing under the laws of the jurisdiction of its
\nincorporation or organization (as applicable), with the requisite corporate
\npower and authority to own or lease and use its properties and assets and to
\ncarry on its business as currently conducted. Neither the Company nor any
\nSubsidiary is in violation or default of any of the provisions of its
\ncertificate of incorporation or bylaws or other organizational documents. The
\nCompany and each of its Subsidiaries is duly qualified to conduct business and
\nis in good standing as a foreign corporation or other entity in each
\njurisdiction in which the nature of the business conducted or property owned by
\nit makes such qualification necessary, except where the failure to be so
\nqualified or in good standing, as the case may be, would not have or reasonably
\nbe expected to result in a Material Adverse Effect, and no Proceeding has been
\ninstituted, is pending, or, to the Company153s Knowledge, has been threatened in
\nany such jurisdiction revoking, limiting or curtailing or seeking to revoke,
\nlimit or curtail such power and authority or qualification.<\/p>\n<\/p>\n

(c) Authorization; Enforcement; Validity<\/u>. The Company has the
\nrequisite corporate power and authority to enter into and to consummate the
\ntransactions contemplated by each of the Transaction Documents to which it is a
\nparty and otherwise to carry out its obligations hereunder and thereunder. The
\nCompany153s execution and delivery of each of the Transaction Documents to which
\nit is a party and the consummation by it of the transactions contemplated hereby
\nand thereby (including, but not limited to, the sale and delivery of the Shares
\nand the Warrants and the reservation for issuance and the subsequent issuance of
\nthe Warrant Shares upon exercise of the Warrants) have been duly authorized by
\nall necessary corporate action on the part of the Company, and no further
\ncorporate action is required by the Company, its Board of Directors or its
\nstockholders in connection therewith other than in connection with the Required
\nApprovals. Each of the Transaction Documents to which it is a party has been (or
\nupon delivery will have been) duly executed by the Company and is, or when
\ndelivered in accordance with the terms hereof, will constitute the legal, valid
\nand binding obligation of the Company enforceable against the Company in
\naccordance with its terms, except (i) as such enforceability may be limited by
\napplicable bankruptcy, insolvency, reorganization, moratorium, liquidation or
\nsimilar laws relating to, or affecting generally the enforcement of, creditors153
\nrights and remedies or by other equitable principles of general application,
\n(ii) as limited by laws relating to the availability of specific performance,
\ninjunctive relief or other equitable remedies and (iii) insofar as
\nindemnification and contribution provisions may be limited by applicable law.\n<\/p>\n<\/p>\n\n\n\n\n
\n

10<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(d) No Conflicts<\/u>. The execution, delivery and performance by the
\nCompany of the Transaction Documents to which it is a party and the consummation
\nby the Company of the transactions contemplated hereby or thereby (including,
\nwithout limitation, the issuance of the Shares and Warrants and the reservation
\nfor issuance and issuance of the Warrant Shares) do not and will not (i)
\nconflict with or violate any provisions of the Company153s or any Subsidiary153s
\ncertificate of incorporation or bylaws or otherwise result in a violation of the
\norganizational documents of the Company, (ii) conflict with, or constitute a
\ndefault (or an event that with notice or lapse of time or both would result in a
\ndefault) under, result in the creation of any Lien upon any of the properties or
\nassets of the Company or any Subsidiary or give to others any rights of
\ntermination, amendment, acceleration or cancellation (with or without notice,
\nlapse of time or both) of, any Material Contract, or (iii) subject to the
\nRequired Approvals, conflict with or result in a violation of any law, rule,
\nregulation, order, judgment, injunction, decree or other restriction of any
\ncourt or governmental authority to which the Company or a Subsidiary is subject
\n(including federal and state securities laws and regulations and the rules and
\nregulations, assuming the correctness of the representations and warranties made
\nby the Purchasers herein, of any self-regulatory organization to which the
\nCompany or its securities are subject, including all applicable Trading
\nMarkets), or by which any property or asset of the Company is bound or affected,
\nexcept in the case of clauses (ii) and (iii) such as would not, individually or
\nin the aggregate, have or reasonably be expected to result in a Material Adverse
\nEffect or a material adverse effect on the legality, validity or enforceability
\nof any Transaction Document or the Company153s ability to perform in any material
\nrespect on a timely basis its obligations under any Transaction Document.<\/p>\n<\/p>\n

(e) Filings, Consents and Approvals<\/u>. Neither the Company nor any of
\nits Subsidiaries is required to obtain any consent, waiver, approval,
\nauthorization or order of, give any notice to, or make any filing or
\nregistration with, any court or other federal, state, local or other
\ngovernmental authority, holder of outstanding securities of the Company or other
\nPerson in connection with the execution, delivery and performance by the Company
\nof the Transaction Documents (including the issuance of the Securities), other
\nthan (i) the filing with the Commission of one or more Registration Statements
\nin accordance with the requirements of the Registration Rights Agreement, (ii)
\nfilings required by applicable state securities laws, (iii) the filing of a
\nNotice of Sale of Securities on Form D with the Commission under Regulation D of
\nthe Securities Act, (iv) the filing of any requisite notices and\/or
\napplication(s) to the Principal Trading Market for the issuance and sale of the
\nSecurities and the listing of the Shares and Warrant Shares for trading or
\nquotation, as the case may be, thereon in the time and manner required thereby,
\n(v) the filings required in accordance with Section 4.6 of this Agreement and
\n(vi) those that have been made or obtained prior to the date of this Agreement
\n(collectively, the “Required Approvals<\/em>“).<\/p>\n<\/p>\n

(f) Issuance of the Securities<\/u>. The Shares have been duly authorized
\nand, when issued and paid for in accordance with the terms of the Transaction
\nDocuments, will be duly and validly issued, fully paid and nonassessable and
\nfree and clear of all Liens, other than restrictions on transfer provided for in
\nthe Transaction Documents or imposed by applicable securities laws, and shall
\nnot be subject to preemptive or similar rights of stockholders. The Warrants
\nhave been duly authorized and, when issued and paid for in accordance with the
\nterms of the Transaction Documents, will be duly and validly issued, free and
\nclear of all Liens, other than restrictions on transfer provided for in the
\nTransaction Documents or imposed by applicable securities laws, and shall not be
\nsubject to preemptive or similar rights of stockholders. The Warrant Shares
\nissuable upon exercise of the Warrants have been duly authorized and, when
\nissued and paid for in accordance with the terms of the Transaction Documents
\nand the Warrants, will be duly and validly issued, fully paid and nonassessable,
\nfree and clear of all Liens, other than restrictions on transfer provided for in
\nthe Transaction Documents or imposed by applicable securities laws, and shall
\nnot be subject to preemptive or similar rights of stockholders. Assuming the
\naccuracy of the representations and warranties of the Purchasers in this
\nAgreement, the Securities will be issued in compliance with all applicable
\nfederal and state securities laws. As of the Closing Date, the Company shall
\nhave reserved from its duly authorized capital stock the number of shares of
\nCommon Stock issuable upon exercise of the Warrants (without taking into account
\nany limitations on the exercise of the Warrants set forth in the Warrants). The
\nCompany shall, so long as any of the Warrants are outstanding, take all action
\nnecessary to reserve and keep available out of its authorized and unissued
\ncapital stock, solely for the purpose of effecting the exercise of the Warrants,
\nthe number of shares of Common Stock issuable upon exercise of the Warrants
\n(without taking into account any limitations on the exercise of the Warrants set
\nforth in the Warrants).<\/p>\n<\/p>\n\n\n\n\n
\n

11<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(g) Capitalization<\/u>. The capitalization of the Company is as described
\nin its most recently filed SEC Report on Form 10-K, except for issuances
\npursuant to this Agreement, stock option exercises, issuances pursuant to equity
\nincentive plans or exercises of warrants. The Company has not issued any capital
\nstock since the date of its most recently filed SEC Report other than to reflect
\nstock option and warrant exercises that do not, individually or in the
\naggregate, have a material affect on the issued and outstanding capital stock,
\noptions and other securities of the Company. No Person has any right of first
\nrefusal, preemptive right, right of participation, or any similar right to
\nparticipate in the transactions contemplated by the Transaction Documents that
\nhave not been effectively waived as of the Closing Date. Except as set forth on
\nSchedule 3.1(g)<\/u> or a result of the purchase and sale of the Shares and
\nWarrants, there are no outstanding options, warrants, scrip rights to subscribe
\nto, calls or commitments of any character whatsoever relating to, or securities,
\nrights or obligations convertible into or exercisable or exchangeable for, or
\ngiving any Person any right to subscribe for or acquire any shares of Common
\nStock, or contracts, commitments, understandings or arrangements by which the
\nCompany or any Subsidiary is or may become bound to issue additional shares of
\nCommon Stock or Common Stock Equivalents. Except as set forth on Schedule
\n3.1(g)<\/u>, the issuance and sale of the Shares and Warrants will not obligate
\nthe Company to issue shares of Common Stock or other securities to any Person
\n(other than the Purchasers) and will not result in a right of any holder of
\nCompany securities to adjust the exercise, conversion, exchange or reset price
\nunder any of such securities. All of the outstanding shares of capital stock of
\nthe Company are validly issued, fully paid and nonassessable, have been issued
\nin compliance in all material respects with all applicable federal and state
\nsecurities laws, and none of such outstanding shares was issued in violation of
\nany preemptive rights or similar rights to subscribe for or purchase securities
\nwhich violation would have or would reasonably be expected to result in a
\nMaterial Adverse Effect. No further approval or authorization of any
\nstockholder, the Board of Directors or others is required for the issuance and
\nsale of the Securities. There are no stockholders agreements, voting agreements
\nor other similar agreements with respect to the Company153s capital stock to which
\nthe Company is a party or, to the Company153s Knowledge, between or among any of
\nthe Company153s stockholders.<\/p>\n<\/p>\n\n\n\n\n
\n

12<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(h) SEC Reports; Disclosure Materials<\/u>. The Company has filed all
\nreports, schedules, forms, statements and other documents required to be filed
\nby it under the Exchange Act, including pursuant to Section 13(a) or 15(d)
\nthereof, for the 12 months preceding the date hereof (or such shorter period as
\nthe Company was required by law or regulation to file such material) (the
\nforegoing materials, including the exhibits thereto and documents incorporated
\nby reference therein, being collectively referred to herein as the “SEC
\nReports<\/em>“, and the SEC Reports, together with the Disclosure Schedules,
\nbeing collectively referred to as the “Disclosure Materials<\/em>“) on a
\ntimely basis or has received a valid extension of such time of filing and has
\nfiled any such SEC Reports prior to the expiration of any such extension, except
\nwhere the failure to file on a timely basis would not have or reasonably be
\nexpected to result in a Material Adverse Effect and would not have or reasonably
\nbe expected to result in any limitation or prohibition on the Company153s ability
\nto register the Shares and Warrant Shares for resale on Form S-1 or any
\nPurchaser153s ability to use Rule 144 to resell any Securities. As of their
\nrespective filing dates, or to the extent corrected by a subsequent amendment,
\nthe SEC Reports complied in all material respects with the requirements of the
\nSecurities Act and the Exchange Act and the rules and regulations of the
\nCommission promulgated thereunder, and none of the SEC Reports, when filed,
\ncontained any untrue statement of a material fact or omitted to state a material
\nfact required to be stated therein or necessary in order to make the statements
\ntherein, in light of the circumstances under which they were made, not
\nmisleading. The Company has never been an issuer subject to Rule 144(i) under
\nthe Securities Act. Each of the Material Contracts to which the Company or any
\nSubsidiary is a party or to which the property or assets of the Company or any
\nof its Subsidiaries are subject has been filed (or incorporated by reference) as
\nan exhibit to the SEC Reports.<\/p>\n<\/p>\n

(i) Financial Statements.<\/u> The consolidated financial statements of the
\nCompany included in the SEC Reports comply in all material respects with
\napplicable accounting requirements and the rules and regulations of the
\nCommission with respect thereto as in effect at the time of filing (or to the
\nextent corrected by a subsequent amendment). Such consolidated financial
\nstatements have been prepared in accordance with GAAP applied on a consistent
\nbasis during the periods involved, except as may be otherwise specified in such
\nfinancial statements or the notes thereto and except that unaudited financial
\nstatements may not contain all footnotes required by GAAP, and fairly present in
\nall material respects the financial position of the Company and its consolidated
\nSubsidiaries taken as a whole as of and for the dates thereof and the results of
\noperations and cash flows for the periods then ended, subject, in the case of
\nunaudited statements, to normal, immaterial year-end audit adjustments.<\/p>\n<\/p>\n

(j) Material Changes<\/u>. Since the date of the latest financial
\nstatements included within the SEC Reports, except as specifically disclosed in
\na subsequent SEC Report filed prior to the date hereof and except as disclosed
\nin Schedule 3.1(j)<\/u>, (i) there have been no events, occurrences or
\ndevelopments that have had or would reasonably be expected to have, either
\nindividually or in the aggregate, a Material Adverse Effect, (ii) the Company
\nhas not incurred any material liabilities (contingent or otherwise) other than
\n(A) trade payables and accrued expenses incurred in the ordinary course of
\nbusiness consistent with past practice and (B) liabilities not required to be
\nreflected in the Company’s financial statements pursuant to GAAP or required to
\nbe disclosed in filings made with the Commission, (iii) the Company has not
\naltered materially its method of accounting or the manner in which it keeps its
\naccounting books and records, (iv) the Company has not declared or made any
\ndividend or distribution of cash or other property to its stockholders or
\npurchased, redeemed or made any agreements to purchase or redeem any shares of
\nits capital stock (other than in connection with repurchases of unvested stock
\nissued to employees of the Company) and (v) the Company has not issued any
\nequity securities to any officer, director or Affiliate, except Common Stock
\nissued in the ordinary course as dividends on outstanding preferred stock or
\nissued pursuant to existing Company stock option or stock purchase plans or
\nexecutive and director compensation arrangements disclosed in the SEC Reports.
\nExcept as disclosed in Schedule 3.1(j)<\/u> and except for the issuance of the
\nShares and Warrants contemplated by this Agreement, no event, liability or
\ndevelopment has occurred or exists with respect to the Company or its
\nSubsidiaries or their respective business, properties, operations or financial
\ncondition, that would be required to be disclosed by the Company under
\napplicable securities laws at the time this representation is made that has not
\nbeen publicly disclosed at least one Trading Day prior to the date that this
\nrepresentation is made.<\/p>\n<\/p>\n\n\n\n\n
\n

13<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(k) Litigation<\/u>. There is no Action which (i) adversely affects or
\nchallenges the legality, validity or enforceability of any of the Transaction
\nDocuments or the Securities or (ii) except as disclosed in Schedule
\n3.1(k)<\/u>, would, if there were an unfavorable decision, individually or in the
\naggregate, have or reasonably be expected to result in a Material Adverse
\nEffect. During the past five years, neither the Company nor any Subsidiary, nor
\nto the Company153s Knowledge any director or officer thereof, is or has been the
\nsubject of any Action involving a claim of violation of or liability under
\nfederal or state securities laws or a claim of breach of fiduciary duty. There
\nhas not been, and to the Company153s Knowledge there is not pending or
\ncontemplated, any investigation by the Commission involving the Company or any
\ncurrent or former director or officer of the Company. During the past five
\nyears, the Commission has not issued any stop order or other order suspending
\nthe effectiveness of any registration statement filed by the Company under the
\nExchange Act or the Securities Act.<\/p>\n<\/p>\n

(l) Employment Matters<\/u>. No material labor dispute exists or, to the
\nCompany153s Knowledge, is imminent with respect to any of the employees of the
\nCompany which would have or would reasonably be expected to result in a Material
\nAdverse Effect. None of the Company153s or any Subsidiary153s employees is a member
\nof a labor union that relates to such employee153s relationship with the Company,
\nand neither the Company nor any of its Subsidiaries is a party to a collective
\nbargaining agreement. Except as disclosed in Schedule 3.1(l)<\/u>, no
\nexecutive officer of the Company (as defined in Rule 501(f) of the Securities
\nAct) has notified the Company or any of its Subsidiaries that such officer
\nintends to leave the Company or any such Subsidiary or otherwise terminate such
\nofficer153s employment with the Company or any such Subsidiary. To the Company153s
\nKnowledge, no executive officer or key employee, is, or is now expected to be,
\nin violation of any material term of any employment contract, confidentiality,
\ndisclosure or proprietary information agreement or non-competition agreement, or
\nany other contract or agreement or any restrictive covenant in favor of any
\nthird party, and to the Company153s Knowledge, the continued employment of each
\nsuch executive officer or key employee does not subject the Company or any
\nSubsidiary to any liability with respect to any of the foregoing matters,
\nexcept, in each case, matters that, individually or in the aggregate, would not
\nreasonably be expected to result in a Material Adverse Effect. The Company is in
\ncompliance with all U.S. federal, state, local and foreign laws and regulations
\nrelating to employment and employment practices, terms and conditions of
\nemployment and wages and hours, except where the failure to be in compliance
\nwould not, individually or in the aggregate, reasonably be expected to result in
\na Material Adverse Effect.<\/p>\n<\/p>\n

(m) Compliance<\/u>. Neither the Company nor any of its Subsidiaries (i) is
\nin default under or in violation of (and no event has occurred that has not been
\nwaived that, with notice or lapse of time or both, would result in a default by
\nthe Company or any of its Subsidiaries under), nor has the Company or any of its
\nSubsidiaries received written notice of a claim that it is in default under or
\nthat it is in violation of, any Material Contract (whether or not such default
\nor violation has been waived), (ii) is in violation of any order of any court,
\narbitrator or governmental body having jurisdiction over the Company or any of
\nits Subsidiaries or their properties or assets, or (iii) is in violation of, or
\nin receipt of written notice that it is in violation of, any statute, rule or
\nregulation of any governmental authority applicable to the Company or any of its
\nSubsidiaries, except in each case as would not, individually or in the
\naggregate, have or reasonably be expected to result in a Material Adverse
\nEffect.<\/p>\n<\/p>\n\n\n\n\n
\n

14<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(n) Regulatory Permits<\/u>. The Company and each of its Subsidiaries
\npossesses all certificates, authorizations and permits issued by the appropriate
\nfederal, state, local or foreign regulatory authorities necessary to conduct its
\nbusiness as currently conducted, except as set forth in the SEC Reports, or such
\nthat where the failure to possess such permits, individually or in the
\naggregate, has not and would not have or would not reasonably be expected to
\nresult in a Material Adverse Effect (“Material Permits<\/em>“), and neither
\nthe Company nor any of its Subsidiaries has received any notice of Proceedings
\nrelating to the revocation or modification of any such Material Permits.<\/p>\n<\/p>\n

(o) Title to Assets<\/u>. The Company and each of its Subsidiaries has good
\nand marketable title to all tangible personal property owned by it that is
\nmaterial to its business, in each case free and clear of all Liens except such
\nas do not materially affect the value of such property and do not interfere with
\nthe use made and proposed to be made of such property by the Company. Any real
\nproperty and facilities held under lease by the Company and any of its
\nSubsidiaries are held by it under valid, subsisting and enforceable leases with
\nsuch exceptions as are not material and do not interfere with the use made and
\nproposed to be made of such property and buildings by the Company and its
\nSubsidiaries.<\/p>\n<\/p>\n

(p) Patents and Trademarks<\/u>. Except as disclosed in Schedule
\n3.1(p)<\/u>, to the Company153s Knowledge, the Company and each of its Subsidiaries
\nowns, possesses, licenses or has other rights to use, all patents, patent
\napplications, trade and service marks, trade and service mark applications and
\nregistrations, trade names, trade secrets, inventions, copyrights, licenses,
\ntechnology, know-how and other intellectual property rights and similar rights
\nnecessary or material for use in connection with its businesses as described in
\nthe SEC Reports and which the failure to so have would have or reasonably be
\nexpected to result in a Material Adverse Effect (collectively, the
\n“Intellectual Property Rights<\/em>“). Except as disclosed in Schedule
\n3.1(p)<\/u>, to the Company153s Knowledge, none of the Intellectual Property Rights
\nused by the Company or any Subsidiary violates or infringes upon the patent,
\ntrademark, copyright, trade secret or other proprietary rights of any Person.
\nThere is no pending or, to the Company153s Knowledge, threatened action, suit,
\nproceeding or claim by any Person that the Company153s or any Subsidiary153s
\nbusiness as now conducted infringes or otherwise violates any patent, trademark,
\ncopyright, trade secret or other proprietary rights of another. To the Company153s
\nKnowledge, there is no existing infringement by another Person of any of the
\nIntellectual Property Rights that would have or would reasonably be expected to
\nresult in a Material Adverse Effect. To the Company153s Knowledge, all patent
\napplications and patents within the Intellectual Property Rights have been
\nprosecuted with a duty of candor, and, except as disclosed in Schedule
\n3.1(p)<\/u>, there is no material fact known by the Company that would preclude
\nthe issuance of patents with respect to said patent applications or that would
\nrender any issued patents invalid or unenforceable. There is no pending or, to
\nthe Company153s Knowledge, threatened action, suit, proceeding or claim by another
\nPerson challenging the Company153s or any Subsidiary153s rights in or to any
\nmaterial Intellectual Property Rights, or challenging inventorship, validity or
\nscope of any such Intellectual Property Rights. The Company has taken reasonable
\nsecurity measures to protect the secrecy, confidentiality and value of all of
\nits and its Subsidiaries153 Intellectual Property Rights, except where failure to
\ndo so would not, individually or in the aggregate, reasonably be expected to
\nresult in a Material Adverse Effect. None of the technology employed by the
\nCompany or any of its Subsidiaries has been obtained or is being used by the
\nCompany or any Subsidiary in violation of any contractual obligation binding on
\nthe Company or any Subsidiary or, to the Company153s Knowledge, any of its or its
\nSubsidiaries153 officers, directors or employees or otherwise in violation of the
\nrights of any Person, which violations would have or would reasonably be
\nexpected to have a Material Adverse Effect.<\/p>\n<\/p>\n\n\n\n\n
\n

15<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(q) Insurance<\/u>. The Company and each of its Subsidiaries is insured by
\ninsurers of recognized financial responsibility against such losses and risks
\nand in such amounts as the Company believes to be prudent and customary in the
\nbusinesses and locations in which the Company and the Subsidiaries are engaged.
\nNone of the Company or any of its Subsidiaries has received any written notice
\nof cancellation of any such insurance, nor, to the Company153s Knowledge, will it
\nor any Subsidiary be unable to renew its existing insurance coverage as and when
\nsuch coverage expires or to obtain similar coverage from similar insurers as may
\nbe necessary to continue its business without a material increase in cost.<\/p>\n<\/p>\n

(r) Transactions With Affiliates and Employees<\/u>. Except as set forth in
\nthe SEC Reports, none of the executive officers or directors of the Company and,
\nto the Company153s Knowledge, none of the employees of the Company is presently a
\nparty to any transaction with the Company (other than for services as employees,
\nofficers and directors) that would be required to be disclosed pursuant to Item
\n404 of Regulation S-K promulgated under the Securities Act.<\/p>\n<\/p>\n

(s) Internal Accounting Controls<\/u>. The Company maintains a system of
\ninternal accounting controls sufficient to provide reasonable assurance that (i)
\ntransactions are executed in accordance with management’s general or specific
\nauthorizations, (ii) transactions are recorded as necessary to permit
\npreparation of financial statements in conformity with GAAP and to maintain
\nasset and liability accountability, (iii) access to assets or incurrence of
\nliabilities is permitted only in accordance with management’s general or
\nspecific authorization, and (iv) the recorded accountability for assets and
\nliabilities is compared with the existing assets and liabilities at reasonable
\nintervals and appropriate action is taken with respect to any differences.<\/p>\n<\/p>\n

(t) Sarbanes-Oxley; Disclosure Controls<\/u>. The Company is in compliance
\nin all material respects with all of the provisions of the Sarbanes-Oxley Act of
\n2002 which are applicable to it. The Company has established disclosure controls
\nand procedures (as such term is defined in Rule 13a-15(e) and 15d-15(e) under
\nthe Exchange Act) for the Company and designed such disclosure controls and
\nprocedures to ensure that information required to be disclosed by the Company in
\nthe reports it files or submits under the Exchange Act is recorded, processed,
\nsummarized and reported, within the time periods specified in the Commission153s
\nrules and forms. The Company153s certifying officers have evaluated the
\neffectiveness of the Company153s disclosure controls and procedures as of the end
\nof the period covered by the Company153s most recently filed periodic report under
\nthe Exchange Act (such date, the “Evaluation Date<\/em>“). The Company
\npresented in its most recently filed periodic report under the Exchange Act the
\nconclusions of the certifying officers about the effectiveness of the disclosure
\ncontrols and procedures based on their evaluations as of the Evaluation Date.
\nSince the Evaluation Date, there have been no changes in the Company153s internal
\ncontrol over financial reporting (as such term is defined in the Exchange Act)
\nthat have materially affected, or are reasonably likely to materially affect,
\nthe Company153s internal control over financial reporting.<\/p>\n<\/p>\n\n\n\n\n
\n

16<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(u) Certain Fees<\/u>. Except as disclosed in Schedule 3.1(u)<\/u>, no
\nperson or entity will have, as a result of the transactions contemplated by this
\nAgreement, any valid right, interest or claim against or upon the Company or a
\nPurchaser for any commission, fee or other compensation pursuant to any
\nagreement, arrangement or understanding entered into by or on behalf of the
\nCompany, other than the Placement Agent with respect to the offer and sale of
\nthe Shares and Warrants (which fees are being paid by the Company). The
\nPurchasers shall have no obligation with respect to any fees or with respect to
\nany claim made by or on behalf of other Persons for fees of a type contemplated
\nin this paragraph (u) pursuant to any agreement to which the Company is a party
\nthat may be due in connection with the transactions contemplated by the
\nTransaction Documents. The Company shall indemnify, pay, and hold each Purchaser
\nharmless against, any liability, loss or expense (including, without limitation,
\nattorneys153 fees and out-of-pocket expenses) arising in connection with any such
\nright, interest or claim.<\/p>\n<\/p>\n

(v) Private Placement<\/u>. Assuming the accuracy of the Purchasers153
\nrepresentations and warranties set forth in Section 3.2 of this Agreement and
\nthe accuracy of the information disclosed in the Accredited Investor
\nQuestionnaires provided by the Purchasers, no registration under the Securities
\nAct is required for the offer and sale of the Securities by the Company to the
\nPurchasers under the Transaction Documents. The issuance and sale of the
\nSecurities hereunder does not contravene the rules and regulations of the
\nPrincipal Trading Market.<\/p>\n<\/p>\n

(w) Investment Company<\/u>. The Company is not, and is not an Affiliate
\nof, and immediately after receipt of payment for the Shares and Warrants, will
\nnot be or be an Affiliate of, an “investment company” within the meaning of the
\nInvestment Company Act of 1940, as amended. The Company shall conduct its
\nbusiness in a manner so that it will not become subject to the Investment
\nCompany Act of 1940, as amended.<\/p>\n<\/p>\n

(x) Registration Rights<\/u>. Other than each of the Purchasers pursuant to
\nthe Registration Rights Agreement, no Person has any right to cause the Company
\nto effect the registration under the Securities Act of any securities of the
\nCompany.<\/p>\n<\/p>\n

(y) Listing and Maintenance Requirements<\/u>. The Company153s Common Stock
\nis registered pursuant to Section 12(b) or 12(g) of the Exchange Act, and the
\nCompany has taken no action designed to terminate the registration of the Common
\nStock under the Exchange Act, nor has the Company received any notification that
\nthe Commission is contemplating terminating such registration. The Company has
\nnot, in the 12 months preceding the date hereof, received written notice from
\nany Trading Market on which the Common Stock is listed or quoted to the effect
\nthat the Company is not in compliance with the listing or maintenance
\nrequirements of such Trading Market. The Company is, and has no reason to
\nbelieve that it will not in the foreseeable future continue to be in compliance
\nwith all listing and maintenance requirements of the Principal Trading Market on
\nthe date hereof.<\/p>\n<\/p>\n

(z) Application of Takeover Protections; Rights Agreements<\/u>. The
\nCompany and the Board of Directors have taken all necessary action, if any, in
\norder to render inapplicable any control share acquisition, business
\ncombination, poison pill (including any distribution under a rights agreement)
\nor other similar anti-takeover provision under the Company’s charter documents
\nor the laws of its state of incorporation that is or could reasonably be
\nexpected to become applicable to any of the Purchasers as a result of the
\nPurchasers and the Company fulfilling their obligations or exercising their
\nrights under the Transaction Documents, including, without limitation, the
\nCompany’s issuance of the Securities and the Purchasers’ ownership of the
\nSecurities.<\/p>\n<\/p>\n\n\n\n\n
\n

17<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(aa) Disclosure<\/u>. The Company confirms that it has not provided, and
\nnone of its officers or directors nor, to the Company153s Knowledge, any other
\nPerson acting on its or their behalf has provided, and it has not authorized the
\nPlacement Agent to provide, any Purchaser or its respective agents or counsel
\nwith any information that it believes constitutes material, non-public
\ninformation except insofar as the existence, provisions and terms of the
\nTransaction Documents and the proposed transactions hereunder may constitute
\nsuch information, all of which will be disclosed by the Company in the Press
\nRelease as contemplated by Section 4.6 hereof. The Company understands and
\nconfirms that the Purchasers will rely on the foregoing representations in
\neffecting transactions in securities of the Company. All disclosure furnished by
\nor on behalf of the Company to the Purchasers regarding the Company, its
\nbusiness and the transactions contemplated hereby, including the Disclosure
\nSchedules to this Agreement, is true and correct and does not contain any untrue
\nstatement of a material fact or omit to state any material fact necessary in
\norder to make the statements made therein, in light of the circumstances under
\nwhich they were made, not misleading. The Company acknowledges and agrees that
\nno Purchaser makes or has made any representations or warranties with respect to
\nthe transactions contemplated hereby other than those specifically set forth in
\nSection 3.2 hereto.<\/p>\n<\/p>\n

(bb) No Integrated Offering<\/u>. Assuming the accuracy of the Purchasers153
\nrepresentations and warranties set forth in Section 3.2, neither the Company
\nnor, to the Company153s Knowledge, any Person acting on its behalf has, directly
\nor indirectly, at any time within the past six months, made any offers or sales
\nof any Company security or solicited any offers to buy any security under
\ncircumstances that would (i) eliminate the availability of the exemption from
\nregistration under Regulation D under the Securities Act in connection with the
\noffer and sale by the Company of the Securities as contemplated hereby or (ii)
\ncause the offering of the Securities pursuant to the Transaction Documents to be
\nintegrated with prior offerings by the Company for purposes of any applicable
\nlaw, regulation or stockholder approval provisions, including, without
\nlimitation, under the rules and regulations of any Trading Market on which any
\nof the securities of the Company are listed or designated unless such
\nintegration would not have or reasonably be expected to result in a Material
\nAdverse Effect.<\/p>\n<\/p>\n

(cc) Tax Matters<\/u>. The Company and each of its Subsidiaries (i) has
\naccurately and timely prepared and filed (or requested valid extensions thereof)
\nall foreign, federal and state income and all other tax returns, reports and
\ndeclarations required by any jurisdiction to which it is subject, (ii) has paid
\nall taxes and other governmental assessments and charges that are material in
\namount, shown or determined to be due on such returns, reports and declarations,
\nexcept those being contested in good faith, with respect to which adequate
\nreserves have been set aside on the books of the Company and (iii) has set aside
\non its books provisions reasonably adequate for the payment of all taxes for
\nperiods subsequent to the periods to which such returns, reports or declarations
\napply, except, in the case of clauses (i) and (ii) above, where the failure to
\nso pay or file any such tax, assessment, charge or return would not have or
\nreasonably be expected to result in a Material Adverse Effect. There are no
\nunpaid taxes in any material amount claimed to be due by the Company or any
\nSubsidiary by the taxing authority of any jurisdiction.<\/p>\n<\/p>\n\n\n\n\n
\n

18<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(dd) Environmental Matters<\/u>. To the Company153s Knowledge, none of the
\nCompany or any of its Subsidiaries (i) is in violation of any statute, rule,
\nregulation, decision or order of any governmental agency or body or any court,
\ndomestic or foreign, relating to the use, disposal or release of hazardous or
\ntoxic substances or relating to the protection or restoration of the environment
\nor human exposure to hazardous or toxic substances (collectively,
\n“Environmental Laws<\/em>“), (ii) owns or operates any real property
\ncontaminated with any substance that is in violation of any Environmental Laws,
\n(iii) is liable for any off-site disposal or contamination pursuant to any
\nEnvironmental Laws, or (iv) is subject to any claim relating to any
\nEnvironmental Laws; which violation, contamination, liability or claim has had
\nor would have, individually or in the aggregate, a Material Adverse Effect; and
\nthere is no pending investigation or, to the Company153s Knowledge, investigation
\nthreatened in writing that might lead to such a claim.<\/p>\n<\/p>\n

(ee) No General Solicitation<\/u>. Neither the Company nor, to the
\nCompany153s Knowledge, any person acting on behalf of the Company has offered or
\nsold any of the Securities by any form of general solicitation or general
\nadvertising.<\/p>\n<\/p>\n

(ff) Off Balance Sheet Arrangements<\/u>. There is no transaction,
\narrangement, or other relationship between the Company, any Subsidiary and an
\nunconsolidated or other off balance sheet entity that is required to be
\ndisclosed by the Company in the SEC Reports and is not so disclosed and would
\nhave or reasonably be expected to result in a Material Adverse Effect.<\/p>\n<\/p>\n

(gg) Foreign Corrupt Practices<\/u>. Neither the Company nor any of its
\nSubsidiaries, nor to the Company153s Knowledge, any agent or other person acting
\non behalf of the Company or any of its Subsidiaries, has (i) directly or
\nindirectly, used any funds for unlawful contributions, gifts, entertainment or
\nother unlawful expenses related to foreign or domestic political activity, (ii)
\nmade any unlawful payment to foreign or domestic government officials or
\nemployees or to any foreign or domestic political parties or campaigns from
\ncorporate funds, (iii) failed to disclose fully any contribution made by the
\nCompany or any Subsidiary (or made by any person acting on its behalf of which
\nthe Company is aware) which is in violation of law, or (iv) violated in any
\nmaterial respect any provision of the Foreign Corrupt Practices Act of 1977, as
\namended.<\/p>\n<\/p>\n

(hh) Acknowledgment Regarding Purchasers153 Purchase of Securities<\/u>. The
\nCompany acknowledges and agrees that each of the Purchasers is acting solely in
\nthe capacity of an arm153s length purchaser with respect to the Transaction
\nDocuments and the transactions contemplated hereby and thereby. The Company
\nfurther acknowledges that no Purchaser is acting as a financial advisor or
\nfiduciary of the Company (or in any similar capacity) with respect to the
\nTransaction Documents and the transactions contemplated thereby and any advice
\ngiven by any Purchaser or any of their respective representatives or agents in
\nconnection with the Transaction Documents and the transactions contemplated
\nthereby is merely incidental to the Purchasers153 purchase of the Securities. The
\nCompany further represents to each Purchaser that the Company153s decision to
\nenter into this Agreement and the other Transaction Documents has been based
\nsolely on the independent evaluation of the transactions contemplated hereby by
\nthe Company and its representatives.<\/p>\n<\/p>\n

(ii) Regulation M Compliance<\/u>. The Company has not, and to the
\nCompany153s Knowledge no one acting on its behalf has, (i) taken, directly or
\nindirectly, any action designed to cause or to result in the stabilization or
\nmanipulation of the price of any security of the Company to facilitate the sale
\nor resale of any of the Securities, (ii) sold, bid for, purchased, or, paid any
\ncompensation for soliciting purchases of, any of the Securities in violation of
\nRegulation M under the Exchange Act, or (iii) paid or agreed to pay to any
\nPerson any compensation for soliciting another to purchase any other securities
\nof the Company, other than, in the case of clauses (ii) and (iii), compensation
\npaid to the Placement Agent in connection with the placement of the Shares and
\nWarrants.<\/p>\n<\/p>\n\n\n\n\n
\n

19<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(jj) PFIC Status<\/u>. Neither the Company nor any of its Subsidiaries is
\nor intends to become a “passive foreign investment company” within the meaning
\nof Section 1297 of the U.S. Internal Revenue Code of 1986, as amended.<\/p>\n<\/p>\n

(kk) OFAC Status<\/u>. Neither the Company nor any of its Subsidiaries is
\nand, to the Company153s Knowledge, no director, officer, agent, employee,
\nAffiliate or Person acting on behalf of the Company or any Subsidiary is
\ncurrently subject to any U.S. sanctions administered by the Office of Foreign
\nAssets Control of the U.S. Treasury Department (“OFAC<\/em>“); and the
\nCompany will not directly or indirectly use the proceeds of the sale of the
\nSecurities, or lend, contribute or otherwise make available such proceeds to any
\njoint venture partner or other Person or entity, towards any sales or operations
\nin Cuba, Iran, Syria, Sudan, Myanmar or any other country sanctioned by OFAC or
\nfor the purpose of financing the activities of any Person currently subject to
\nany U.S. sanctions administered by OFAC.<\/p>\n<\/p>\n

(ll) Government Licenses<\/u>. The Company and its Subsidiaries possess
\nsuch permits, certificates, licenses, approvals, consents and other
\nauthorizations (collectively, “Governmental Licenses<\/em>“) issued by the
\nappropriate federal, state, local or foreign regulatory agencies or bodies
\nnecessary to conduct the business of the Company as described in the SEC
\nReports, including without limitation, all such approvals, certificates,
\nauthorizations and permits required by the United States Food and Drug
\nAdministration (the “FDA<\/em>“) and\/or other federal, state, local or
\nforeign agencies or bodies engaged in the regulation of clinical trials,
\npharmaceuticals, or biohazardous substances or materials, except where the
\nfailure so to possess would not, individually or in the aggregate, have or
\nreasonably be expected to have a Material Adverse Effect; the Company and each
\nof its Subsidiaries is in compliance with the terms and conditions of all such
\nGovernmental Licenses, except where the failure so to comply would not,
\nindividually or in the aggregate, have or reasonably be expected to have a
\nMaterial Adverse Effect; all of the Governmental Licenses are valid and in full
\nforce and effect, except when the invalidity of such Governmental Licenses or
\nthe failure of such Governmental Licenses to be in full force and effect would
\nnot, individually or in the aggregate, have or reasonably be expected to have a
\nMaterial Adverse Effect; and neither the Company nor any of its Subsidiaries has
\nreceived any written notice of Proceedings relating to the revocation or
\nmodification of any such Governmental Licenses which, individually or in the
\naggregate, if the subject of an unfavorable decision, ruling or finding, would
\nhave or reasonably be expected to have a Material Adverse Effect. Where required
\nby applicable laws and regulations of the FDA or any foreign regulatory
\nauthority, the Company and each of its Subsidiaries has submitted to the FDA or
\nany foreign regulatory authority an Investigational New Drug Application, or
\nsimilar application, or amendment or supplement thereto for a clinical trial it
\nhas conducted or sponsored or is conducting or sponsoring, except where such
\nfailure would not, individually or in the aggregate, have or reasonably be
\nexpected to have a Material Adverse Effect; all such submissions were in
\nmaterial compliance with applicable laws and rules and regulations when
\nsubmitted and no material deficiencies have been asserted by the FDA or such
\nforeign regulatory authority with respect to any such submissions, except any
\ndeficiencies which could not, individually or in the aggregate, have or
\nreasonably be expected to have a Material Adverse Effect.<\/p>\n<\/p>\n\n\n\n\n
\n

20<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(mm) No Additional Agreements<\/u>. The Company does not have any agreement
\nor understanding with any Purchaser with respect to the transactions
\ncontemplated by the Transaction Documents other than as specified in the
\nTransaction Documents.<\/p>\n<\/p>\n

3.2 Representations and Warranties of the Purchasers<\/u>. Each Purchaser
\nhereby, for itself and for no other Purchaser, represents and warrants as of the
\ndate hereof and as of the Closing Date to the Company and the Placement Agent as
\nfollows:<\/p>\n<\/p>\n

(a) Organization; Authority<\/u>. Such Purchaser is an entity duly
\norganized, validly existing and in good standing under the laws of the
\njurisdiction of its organization with the requisite corporate, limited liability
\ncompany or partnership power and authority to enter into and to consummate the
\ntransactions contemplated by the applicable Transaction Documents and otherwise
\nto carry out its obligations hereunder and thereunder. The execution and
\ndelivery of this Agreement by such Purchaser and performance by such Purchaser
\nof the transactions contemplated by this Agreement have been duly authorized by
\nall necessary corporate or, if such Purchaser is not a corporation, such
\npartnership, limited liability company or other applicable like action, on the
\npart of such Purchaser. Each Transaction Document to which it is a party has
\nbeen duly executed by such Purchaser, and when delivered by such Purchaser in
\naccordance with the terms hereof, will constitute the valid and legally binding
\nobligation of such Purchaser, enforceable against it in accordance with its
\nterms, except as such enforceability may be limited by applicable bankruptcy,
\ninsolvency, reorganization, moratorium, liquidation or similar laws relating to,
\nor affecting generally the enforcement of, creditors153 rights and remedies or by
\nother equitable principles of general application.<\/p>\n<\/p>\n

(b) No Conflicts<\/u>. The execution, delivery and performance by such
\nPurchaser of this Agreement and the Registration Rights Agreement and the
\nconsummation by such Purchaser of the transactions contemplated hereby and
\nthereby will not (i) result in a violation of the organizational documents of
\nsuch Purchaser, (ii) conflict with, or constitute a default (or an event which
\nwith notice or lapse of time or both would become a default) under, or give to
\nothers any rights of termination, amendment, acceleration or cancellation of,
\nany agreement, indenture or instrument to which such Purchaser is a party, or
\n(iii) result in a violation of any law, rule, regulation, order, judgment or
\ndecree (including federal and state securities laws) applicable to such
\nPurchaser, except in the case of clauses (ii) and (iii) above, for such
\nconflicts, defaults, rights or violations which would not, individually or in
\nthe aggregate, reasonably be expected to have a material adverse effect on the
\nability of such Purchaser to perform its obligations hereunder.<\/p>\n<\/p>\n

(c) Investment Intent<\/u>. Such Purchaser understands that the Securities
\nare “restricted securities” and have not been registered under the Securities
\nAct or any applicable state securities law and is acquiring the Shares and
\nWarrants and, upon exercise of the Warrants, will acquire the Warrant Shares
\nissuable upon exercise thereof as principal for its own account and not with a
\nview to, or for distributing or reselling such Securities or any part thereof in
\nviolation of the Securities Act or any applicable state securities laws,
\nprovided, however<\/em>, that by making the representations herein, such
\nPurchaser does not agree to hold any of the Securities for any minimum period of
\ntime and reserves the right, subject to the provisions of this Agreement and the
\nRegistration Rights Agreement, at all times to sell or otherwise dispose of all
\nor any part of such Securities pursuant to an effective registration statement
\nunder the Securities Act or under an exemption from such registration and in
\ncompliance with applicable federal and state securities laws. Such Purchaser is
\nacquiring the Securities hereunder in the ordinary course of its business. Such
\nPurchaser does not presently have any agreement, plan or understanding, directly
\nor indirectly, with any Person to distribute or effect any distribution of any
\nof the Securities (or any securities which are derivatives thereof) to or
\nthrough any person or entity; such Purchaser is not a registered broker-dealer
\nunder Section 15 of the Exchange Act or an entity engaged in a business that
\nwould require it to be so registered as a broker-dealer.<\/p>\n<\/p>\n\n\n\n\n
\n

21<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(d) Purchaser Status<\/u>. At the time such Purchaser was offered the
\nShares and Warrants, it was, and at the date hereof it is, and on each date on
\nwhich it exercises the Warrants it will be, an “accredited investor” as defined
\nin Rule 501(a) under the Securities Act.<\/p>\n<\/p>\n

(e) General Solicitation<\/u>. Such Purchaser is not purchasing the
\nSecurities as a result of any advertisement, article, notice or other
\ncommunication regarding the Securities published in any newspaper, magazine or
\nsimilar media or broadcast over television or radio or presented at any seminar
\nor any other general advertisement.<\/p>\n<\/p>\n

(f) Experience of Such Purchaser<\/u>. Such Purchaser, either alone or
\ntogether with its representatives, has such knowledge, sophistication and
\nexperience in business and financial matters so as to be capable of evaluating
\nthe merits and risks of the prospective investment in the Securities, and has so
\nevaluated the merits and risks of such investment. Such Purchaser is able to
\nbear the economic risk of an investment in the Securities and, at the present
\ntime, is able to afford a complete loss of such investment.<\/p>\n<\/p>\n

(g) Access to Information<\/u>. Such Purchaser acknowledges that it has had
\nthe opportunity to review the Disclosure Materials and has been afforded (i) the
\nopportunity to ask such questions as it has deemed necessary of, and to receive
\nanswers from, representatives of the Company concerning the terms and conditions
\nof the offering of the Securities and the merits and risks of investing in the
\nSecurities; (ii) access to information about the Company and its Subsidiaries
\nand their respective financial condition, results of operations, business,
\nproperties, management and prospects sufficient to enable it to evaluate its
\ninvestment; and (iii) the opportunity to obtain such additional information that
\nthe Company possesses or can acquire without unreasonable effort or expense that
\nis necessary to make an informed investment decision with respect to the
\ninvestment. Neither such inquiries nor any other investigation conducted by or
\non behalf of such Purchaser or its representatives or counsel shall modify,
\namend or affect such Purchaser’s right to rely on the truth, accuracy and
\ncompleteness of the Company’s representations and warranties contained in the
\nTransaction Documents. Such Purchaser has sought such accounting, legal and tax
\nadvice as it has considered necessary to make an informed decision with respect
\nto its acquisition of the Securities.<\/p>\n<\/p>\n

(h) Brokers and Finders<\/u>. No Person will have, as a result of the
\ntransactions contemplated by this Agreement, any valid right, interest or claim
\nagainst or upon the Company or any Purchaser for any commission, fee or other
\ncompensation pursuant to any agreement, arrangement or understanding entered
\ninto by or on behalf of such Purchaser.<\/p>\n<\/p>\n\n\n\n\n
\n

22<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(i) Independent Investment Decision<\/u>. Such Purchaser has independently
\nevaluated the merits of its decision to purchase Securities pursuant to the
\nTransaction Documents, and such Purchaser confirms that it has not relied on the
\nadvice of any other Purchaser153s business and\/or legal counsel in making such
\ndecision. Such Purchaser understands that nothing in this Agreement or any other
\nmaterials presented by or on behalf of the Company to the Purchaser in
\nconnection with the purchase of the Securities constitutes legal, tax or
\ninvestment advice. Such Purchaser has consulted such legal, tax and investment
\nadvisors as it, in its sole discretion, has deemed necessary or appropriate in
\nconnection with its purchase of the Securities. Such Purchaser understands that
\nthe Placement Agent has acted solely as the agent of the Company in this
\nplacement of the Shares and Warrants and such Purchaser has not relied on the
\nbusiness or legal advice of the Placement Agent or any of its agents, counsel or
\nAffiliates in making its investment decision hereunder, and confirms that none
\nof such Persons has made any representations or warranties to such Purchaser in
\nconnection with the transactions contemplated by the Transaction Documents.<\/p>\n<\/p>\n

(j) Reliance on Exemptions<\/u>. Such Purchaser understands that the
\nSecurities are being offered and sold to it in reliance on specific exemptions
\nfrom the registration requirements of United States federal and state securities
\nlaws and that the Company is relying in part upon the truth and accuracy of, and
\nsuch Purchaser153s compliance with, the representations, warranties, agreements,
\nacknowledgements and understandings of such Purchaser set forth herein in order
\nto determine the availability of such exemptions and the eligibility of such
\nPurchaser to acquire the Securities.<\/p>\n<\/p>\n

(k) No Governmental Review<\/u>. Such Purchaser understands that no United
\nStates federal or state agency or any other government or governmental agency
\nhas passed on or made any recommendation or endorsement of the Securities or the
\nfairness or suitability of the investment in the Securities nor have such
\nauthorities passed upon or endorsed the merits of the offering of the
\nSecurities.<\/p>\n<\/p>\n

(l) Residency<\/u>. Such Purchaser153s residence (if an individual) or
\noffices in which its investment decision with respect to the Securities was made
\n(if an entity) are located at the address immediately below such Purchaser153s
\nname on its signature page hereto.<\/p>\n<\/p>\n

(m) Accuracy of Accredited Investor Questionnaire<\/u>. The Accredited
\nInvestor Questionnaire delivered by such Purchaser in connection with this
\nAgreement is complete and accurate in all respects as of the date of this
\nAgreement and will be correct as of the Closing Date.<\/p>\n<\/p>\n

The Company and each of the Purchasers acknowledge and agree that no party to
\nthis Agreement has made or makes any representations or warranties with respect
\nto the transactions contemplated hereby other than those specifically set forth
\nin this Article III and the Transaction Documents.<\/p>\n<\/p>\n\n\n\n\n
\n

23<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Article IV<\/p>\n

\n

OTHER AGREEMENTS OF THE PARTIES<\/p>\n

\n

4.1 Transfer Restrictions<\/u>.<\/p>\n<\/p>\n

(a) Compliance with Laws<\/u>. Notwithstanding any other provision of this
\nArticle IV, each Purchaser, severally but not jointly, covenants that the
\nSecurities may be disposed of only pursuant to an effective registration
\nstatement under, and in compliance with the requirements of, the Securities Act,
\nor pursuant to an available exemption from, or in a transaction not subject to,
\nthe registration requirements of the Securities Act, and in compliance with any
\napplicable state and federal securities laws. In connection with any transfer of
\nthe Securities other than (i) pursuant to an effective registration statement,
\n(ii) to the Company, (iii) pursuant to Rule 144 (provided<\/em> that such
\nPurchaser provides the Company with reasonable assurances (in the form of seller
\nand, if applicable, broker representation letters) that the securities may be
\nsold pursuant to such rule) or (iv) in connection with a bona fide pledge as
\ncontemplated in Section 4.1(b), the Company may require the transferor thereof
\nto provide to the Company an opinion of counsel selected by the transferor and
\nreasonably acceptable to the Company, the form and substance of which opinion
\nshall be reasonably satisfactory to the Company, to the effect that such
\ntransfer does not require registration of such transferred Securities under the
\nSecurities Act. As a condition of transfer, any such transferee shall agree in
\nwriting to be bound by the terms of this Agreement and the Registration Rights
\nAgreement and shall have the rights of a Purchaser under this Agreement and the
\nRegistration Rights Agreement with respect to such transferred Securities.<\/p>\n<\/p>\n

(b) Legends<\/u>. Certificates evidencing the Securities shall bear any
\nlegend as required by the “blue sky” laws of any state and a restrictive legend
\nin substantially the following form, until such time as they are not required
\nunder Section 4.1(c):<\/p>\n<\/p>\n

[NEITHER THESE SECURITIES NOR THE SECURITIES ISSUABLE UPON EXERCISE OF THESE
\nSECURITIES HAVE BEEN REGISTERED] [THESE SECURITIES HAVE NOT BEEN REGISTERED]
\nUNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR
\nAPPLICABLE STATE SECURITIES LAWS. THE SECURITIES MAY NOT BE OFFERED FOR SALE,
\nSOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE
\nREGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OR (B) AN
\nAVAILABLE EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
\nREQUIREMENTS OF THE SECURITIES ACT AND IN ACCORDANCE WITH APPLICABLE STATE
\nSECURITIES LAWS OR BLUE SKY LAWS AS EVIDENCED BY A LEGAL OPINION OF COUNSEL
\nREASONABLY SATISFACTORY TO THE COMPANY AND ITS TRANSFER AGENT OR (II) UNLESS
\nSOLD PURSUANT TO RULE 144 UNDER SAID ACT.<\/p>\n<\/p>\n

The Company acknowledges and agrees that a Purchaser may from time to time
\npledge, and\/or grant a security interest in, some or all of the legended
\nSecurities in connection with applicable securities laws, pursuant to a bona
\nfide margin agreement in compliance with a bona fide margin loan. Such a pledge
\nwould not be subject to approval or consent of the Company and no legal opinion
\nof legal counsel to the pledgee, secured party or pledgor shall be required in
\nconnection with the pledge, but such legal opinion shall be required in
\nconnection with a subsequent transfer or foreclosure following default by such
\nPurchaser transferee of the pledge. No notice shall be required of such pledge,
\nbut such Purchaser153s transferee shall promptly notify the Company of any such
\nsubsequent transfer or foreclosure of such legended Securities. Each Purchaser
\nacknowledges that the Company shall not be responsible for any pledges relating
\nto, or the grant of any security interest in, any of the Securities or for any
\nagreement, understanding or arrangement between any Purchaser and its pledgee or
\nsecured party. At the appropriate Purchaser153s expense, the Company will execute
\nand deliver such reasonable documentation as a pledgee or secured party of
\nSecurities may reasonably request in connection with a pledge or transfer of the
\nSecurities, including the preparation and filing of any required prospectus
\nsupplement under Rule 424(b)(3) of the Securities Act or other applicable
\nprovision of the Securities Act to appropriately amend the list of selling
\nstockholders thereunder. Each Purchaser acknowledges and agrees that, except as
\notherwise provided in Section 4.1(c), any Securities subject to a pledge or
\nsecurity interest as contemplated by this Section 4.1(b) shall continue to bear
\nthe legend set forth in this Section 4.1(b) and be subject to the restrictions
\non transfer set forth in Section 4.1(a).<\/p>\n<\/p>\n\n\n\n\n
\n

24<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(c) Removal of Legends<\/u>. The legend set forth in Section 4.1(b) above
\nshall be removed and the Company shall issue a certificate without such legend
\nor any other legend to the holder of the applicable Securities upon which it is
\nstamped or issue to such holder by electronic delivery at the applicable balance
\naccount at the Depository Trust Company (“DTC<\/em>“), if (i) such Securities
\nare registered for resale under the Securities Act (provided that, if a
\nPurchaser is selling pursuant to the Registration Statement, such Purchaser
\nagrees to only sell such Securities during such time that the Registration
\nStatement is effective and not withdrawn or suspended, and only as permitted by
\nthe Registration Statement), (ii) such Securities are sold or transferred
\npursuant to Rule 144 (if the transferor is not an Affiliate of the Company), or
\n(iii) such Securities are eligible for sale under Rule 144, without the
\nrequirement for the Company to be in compliance with the current public
\ninformation required under Rule 144 as to such securities and without volume or
\nmanner-of-sale restrictions. Following the earlier of (i) the Effective Date or
\n(ii) Rule 144 becoming available for the resale of Securities, without the
\nrequirement for the Company to be in compliance with the current public
\ninformation required under Rule 144 as to such securities and without volume or
\nmanner-of-sale restrictions, the Company shall deliver to the Transfer Agent
\nirrevocable instructions that the Transfer Agent shall reissue a certificate
\nrepresenting the applicable Shares or issue a certificate representing the
\napplicable Warrant Shares without legend upon receipt by the Transfer Agent of
\nthe legended certificates for such Shares. Any fees (with respect to the
\nTransfer Agent or otherwise) associated with the removal of such legend shall be
\nborne by the Company. Following the Effective Date, or at such earlier time as a
\nlegend is no longer required for certain Securities (in which case a Purchase
\nshall also be required to provide reasonable assurances (in the form of seller
\nand, if applicable, broker representation letters), the Company will no later
\nthan three Trading Days following the delivery by a Purchaser to the Company or
\nthe Transfer Agent (with notice to the Company) of (i) a legended certificate
\nrepresenting Shares or Warrant Shares (endorsed or with stock powers attached,
\nsignatures guaranteed, and otherwise in form necessary to affect the reissuance
\nand\/or transfer) or (ii) an Exercise Notice and payment of the applicable
\nexercise price in the manner stated in the Warrants to effect the exercise of
\nsuch Warrant in accordance with its terms, and an opinion of counsel to the
\nextent required by Section 4.1(a) (such third Trading Day, the “Legend
\nRemoval Date<\/em>“), deliver or cause to be delivered to the transferee of such
\nPurchaser or such Purchaser, as applicable, a certificate representing such
\nSecurities that is free from all restrictive and other legends. The Company may
\nnot make any notation on its records or give instructions to the Transfer Agent
\nthat enlarge the restrictions on transfer set forth in this Section 4.1(c) other
\nthan to comply with applicable law. Certificates for Shares or Warrant Shares
\nsubject to legend removal hereunder may be transmitted by the Transfer Agent to
\na Purchaser by crediting the account of such Purchaser153s prime broker with DTC
\nas directed by such Purchaser.<\/p>\n<\/p>\n\n\n\n\n
\n

25<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(d) Irrevocable Transfer Agent Instructions<\/u>. The Company shall issue
\nirrevocable instructions to its transfer agent, and any subsequent transfer
\nagent, in substantially the form of Exhibit E<\/u> attached hereto (the
\n“Irrevocable Transfer Agent Instructions<\/em>“). The Company represents and
\nwarrants that no instruction other than the Irrevocable Transfer Agent
\nInstructions referred to in this Section 4.1(d) (or instructions that are
\nconsistent therewith) will be given by the Company to its transfer agent in
\nconnection with this Agreement, and that the Securities shall otherwise be
\nfreely transferable on the books and records of the Company as and to the extent
\nprovided in this Agreement and the other Transaction Documents and applicable
\nlaw. The Company acknowledges that a breach by it of its obligations under this
\nSection 4.1(d) will cause irreparable harm to a Purchaser. Accordingly, the
\nCompany acknowledges that the remedy at law for a breach of its obligations
\nunder this Section 4.1(d) will be inadequate and agrees, in the event of a
\nbreach or threatened breach by the Company of the provisions of this Section
\n4.1(d), that a Purchaser shall be entitled, in addition to all other available
\nremedies, to an order and\/or injunction restraining any breach and requiring
\nimmediate issuance and transfer, without the necessity of showing economic loss
\nand without any bond or other security being required.<\/p>\n<\/p>\n

(e) Acknowledgement<\/u>. Each Purchaser, severally but not jointly,
\nacknowledges its primary responsibilities under the Securities Act and
\naccordingly will not sell or otherwise transfer the Securities or any interest
\ntherein without complying with the requirements of the Securities Act and
\napplicable law. While the Registration Statement remains effective, each
\nPurchaser hereunder may sell the Shares and Warrant Shares in accordance with
\nthe plan of distribution contained in the Registration Statement and if it does
\nso it will comply therewith and with the related prospectus delivery
\nrequirements unless an exemption therefrom is available. Each Purchaser,
\nseverally and not jointly with the other Purchasers, agrees that if it is
\nnotified by the Company in writing at any time that the Registration Statement
\nregistering the resale of the Shares or the Warrant Shares is not effective or
\nthat the prospectus included in such Registration Statement no longer complies
\nwith the requirements of Section 10 of the Securities Act, such Purchaser will
\nrefrain from selling such Shares and Warrant Shares until such time as the
\nPurchaser is notified by the Company that such Registration Statement is
\neffective or such prospectus is compliant with Section 10 of the Securities Act,
\nunless such Purchaser is able to, and does, sell such Shares or Warrant Shares
\npursuant to an available exemption from the registration requirements of Section
\n5 of the Securities Act. Both the Company and its Transfer Agent, and their
\nrespective directors, officers, employees and agents, may rely on this Section
\n4.1(e) and each Purchaser, severally but not jointly, with the other Purchasers
\nwill indemnify and hold harmless each of such persons from any breaches or
\nviolations of this Section 4.1(e).<\/p>\n<\/p>\n

(f) Buy-In<\/u>. If the Company shall fail for any reason or for no reason
\nto issue to a Purchaser unlegended certificates within three Trading Days after
\nreceipt of all documents necessary for the removal of the legend set forth above
\n(the “Deadline Date<\/em>“), then, in addition to all other remedies
\navailable to such Purchaser, if on or after the Trading Day immediately
\nfollowing such three Trading Day period, such Purchaser is required to purchase
\n(in an open market transaction or otherwise) shares of Common Stock to deliver
\nin satisfaction of a sale by the holder of shares of Common Stock that such
\nPurchaser anticipated receiving from the Company without any restrictive legend
\n(a “Buy-In<\/em>“), then the Company shall, within three Trading Days after
\nsuch Purchaser153s request and in the Company153s sole discretion, either (i) pay
\ncash to such Purchaser in an amount equal to such Purchaser153s total purchase
\nprice (including brokerage commissions, if any) for the shares of Common Stock
\nso purchased (the “Buy-In Price<\/em>“), at which point the shares of Common
\nStock held by such Purchaser equal to the number of shares of Common Stock so
\npurchased shall be forfeited to the Company and the Company153s obligation to
\ndeliver such certificate (and to issue such shares of Common Stock) shall
\nterminate, or (ii) promptly honor its obligation to deliver to such Purchaser a
\ncertificate or certificates representing such shares of Common Stock and pay
\ncash to the Purchaser in an amount equal to the excess (if any) of the Buy-In
\nPrice over the product of (a) such number of shares of Common Stock, multiplied
\nby (b) the Closing Bid Price on the Deadline Date. A Purchaser shall provide the
\nCompany written notice indicating the amounts payable to such Purchaser in
\nrespect of the Buy-In, together with applicable confirmations and other evidence
\nreasonably requested by the Company.<\/p>\n<\/p>\n\n\n\n\n
\n

26<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

4.2 Reservation of Common Stock<\/u>. The Company shall take all action
\nnecessary to at all times during the period the Warrants are outstanding have
\nauthorized, and reserved for the purpose of issuance from and after the Closing
\nDate, the number of shares of Common Stock issuable upon exercise of the
\nWarrants issued at the Closing (without taking into account any limitations on
\nexercise of the Warrants set forth in the Warrants).<\/p>\n<\/p>\n

4.3 Acknowledgment of Dilution<\/u>. The Company acknowledges that the
\nissuance of the Shares may result in dilution of the outstanding shares of
\nCommon Stock, which dilution may be substantial under certain market conditions.
\nThe Company further acknowledges that its obligations under the Transaction
\nDocuments, including without limitation its obligation to issue the Shares
\npursuant to the Transaction Documents, are unconditional and absolute and not
\nsubject to any right of set off, counterclaim, delay or reduction, regardless of
\nthe effect of any such dilution or any claim the Company may have against any
\nPurchaser and regardless of the dilutive effect that such issuance may have on
\nthe ownership of the other stockholders of the Company.<\/p>\n<\/p>\n

4.4 Furnishing of Information<\/u>. In order to enable the Purchasers to
\nsell the Securities under Rule 144, until the earlier of (i) the date that the
\nSecurities cease to be Registrable Securities (as defined in the Registration
\nRights Agreement) (and for no less than 12 months from the Closing) or (ii) a
\nFundamental Transaction (as defined in the Warrant) pursuant to which the
\nCompany is no longer a reporting company under the Exchange Act, the Company
\nshall use its commercially reasonable efforts to timely file (or obtain
\nextensions in respect thereof and file within the applicable grace period) all
\nreports required to be filed by the Company after the date hereof pursuant to
\nthe Exchange Act. Except as set forth in clause (ii) above, during such period,
\nif the Company is not required to file reports pursuant to the Exchange Act, it
\nwill prepare and furnish to the Purchasers and make publicly available in
\naccordance with Rule 144(c) such information as is required for the Purchasers
\nto sell the Securities under Rule 144.<\/p>\n<\/p>\n

4.5 No Integration<\/u>. The Company shall not, and shall use its
\ncommercially reasonable efforts to ensure that no Affiliate of the Company
\nshall, sell, offer for sale or solicit offers to buy or otherwise negotiate in
\nrespect of any security (as defined in Section 2 of the Securities Act) that
\nwill be integrated with the offer or sale of the Securities in a manner that
\nwould require the registration under the Securities Act of the sale of the
\nSecurities to the Purchasers, or that will be integrated with the offer or sale
\nof the Securities for purposes of the rules and regulations of any Trading
\nMarket such that it would require stockholder approval prior to the closing of
\nsuch other transaction unless stockholder approval is obtained before the
\nclosing of such subsequent transaction.<\/p>\n<\/p>\n\n\n\n\n
\n

27<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

4.6 Securities Laws Disclosure; Publicity<\/u>. On or before 9:00 a.m., New
\nYork City time, on the Business Day immediately following the date hereof, the
\nCompany shall issue a press release (the “Press Release<\/em>“) reasonably
\nacceptable to the Placement Agent disclosing all material terms of the
\ntransactions contemplated hereby. On or before 5:30 p.m., New York City time, on
\nthe fourth Trading Day immediately following the execution of this Agreement,
\nthe Company will file a Current Report on Form 8-K with the Commission
\ndescribing the terms of the Transaction Documents (and including as exhibits to
\nsuch Current Report on Form 8-K the material Transaction Documents (including,
\nwithout limitation, this Agreement, the form of Warrant and the Registration
\nRights Agreement)). Notwithstanding the foregoing, the Company shall not
\npublicly disclose the name of any Purchaser or an Affiliate of any Purchaser, or
\ninclude the name of any Purchaser or an Affiliate of any Purchaser in any press
\nrelease or filing with the Commission (other than the Registration Statement) or
\nany regulatory agency or Trading Market, without the prior written consent of
\nsuch Purchaser, except (i) as required by federal securities law in connection
\nwith (A) any registration statement contemplated by the Registration Rights
\nAgreement and (B) the filing of final Transaction Documents (including signature
\npages thereto) with the Commission and (ii) to the extent such disclosure is
\nrequired by law, request of the Staff of the Commission or Trading Market
\nregulations, in which case the Company shall provide the Purchasers with prior
\nwritten notice of such disclosure permitted under this subclause (ii). From and
\nafter the issuance of the Press Release, no Purchaser shall be in possession of
\nany material, non-public information received from the Company or any of its
\nofficers, directors, employees or agents, that is not disclosed in the Press
\nRelease. Each Purchaser, severally and not jointly with the other Purchasers,
\ncovenants that it will comply with the provisions of any confidentiality or
\nnondisclosure agreement executed by it and, in addition, until such time as the
\ntransactions contemplated by this Agreement are required to be publicly
\ndisclosed by the Company as described in this Section 4.6, such Purchaser will
\nmaintain the confidentiality of all disclosures made to it in connection with
\nthis transaction (including the existence and terms of this transaction).<\/p>\n<\/p>\n

4.7 Shareholder Rights Plan<\/u>. No claim will be made or enforced by the
\nCompany or, with the consent of the Company, any other Person, that any
\nPurchaser is an “Acquiring Person” under any control share acquisition, business
\ncombination, poison pill (including any distribution under a rights agreement)
\nor similar anti-takeover plan or arrangement in effect or hereafter adopted by
\nthe Company, or that any Purchaser could be deemed to trigger the provisions of
\nany such plan or arrangement, in either case solely by virtue of receiving
\nSecurities under the Transaction Documents or under any other written agreement
\nbetween the Company and the Purchasers.<\/p>\n<\/p>\n

4.8 Non-Public Information<\/u>. Except with respect to the material terms
\nand conditions of the transactions contemplated by the Transaction Documents,
\nincluding this Agreement, or as expressly required by any applicable securities
\nlaw, the Company covenants and agrees that neither it, nor any other Person
\nacting on its behalf, will provide any Purchaser or its agents or counsel with
\nany information regarding the Company that the Company believes constitutes
\nmaterial non-public information without the express written consent of such
\nPurchaser, unless prior thereto such Purchaser shall have executed a written
\nagreement regarding the confidentiality and use of such information. The Company
\nunderstands and confirms that each Purchaser shall be relying on the foregoing
\ncovenant in effecting transactions in securities of the Company.<\/p>\n<\/p>\n

4.9 Use of Proceeds<\/u>. The Company shall use the net proceeds from the
\nsale of the Shares and Warrants hereunder for working capital and general
\ncorporate purposes.<\/p>\n<\/p>\n\n\n\n\n
\n

28<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

4.10 Indemnification of Purchasers<\/u>. Subject to the provisions of this
\nSection 4.10, the Company will indemnify and hold each Purchaser and its
\ndirectors, officers, shareholders, members, partners, employees and agents (and
\nany other Persons with a functionally equivalent role of a Person holding such
\ntitles notwithstanding a lack of such title or any other title), each Person who
\ncontrols such Purchaser (within the meaning of Section 15 of the Securities Act
\nand Section 20 of the Exchange Act), and the directors, officers, shareholders,
\nagents, members, partners or employees (and any other Persons with a
\nfunctionally equivalent role of a Person holding such titles notwithstanding a
\nlack of such title or any other title) of such controlling persons (each, a
\n“Purchaser Party<\/em>“) harmless from any and all losses, liabilities,
\nobligations, claims, contingencies, damages, costs and expenses, including all
\njudgments, amounts paid in settlements, court costs and reasonable attorneys153
\nfees and costs of investigation that any such Purchaser Party may suffer or
\nincur as a result of or relating to (a) any breach of any of the
\nrepresentations, warranties, covenants or agreements made by the Company in this
\nAgreement or in the other Transaction Documents or (ii) any action instituted
\nagainst a Purchaser in any capacity, or any Purchaser Party, by any stockholder
\nof the Company who is not an Affiliate of such Purchaser seeking
\nindemnification, with respect to any of the transactions contemplated by the
\nTransaction Documents (unless such action is based upon a breach of such
\nPurchaser153s representations, warranties or covenants under the Transaction
\nDocuments or any other agreement with the Company, or any agreements or
\nunderstandings such Purchaser may have with any such stockholder or any
\nviolations by the Purchaser of state or federal securities laws or any conduct
\nby such Purchaser which constitutes fraud, gross negligence, willful misconduct
\nor malfeasance). Promptly after receipt by any such Person (the
\n“Indemnified Person<\/em>“) of notice of any demand, claim or circumstances
\nwhich would or might give rise to a claim or the commencement of any action,
\nproceeding or investigation in respect of which indemnity may be sought pursuant
\nto this Section 4.10, such Indemnified Person shall promptly notify the Company
\nin writing and the Company shall assume the defense thereof, including the
\nemployment of counsel reasonably satisfactory to such Indemnified Person, and
\nshall assume the payment of all fees and expenses relating to such action,
\nproceeding or investigation; provided, however, that the failure of any
\nIndemnified Person so to notify the Company shall not relieve the Company of its
\nobligations hereunder except to the extent that the Company is actually and
\nmaterially prejudiced by such failure to notify. In any such proceeding, any
\nIndemnified Person shall have the right to retain its own counsel, but the fees
\nand expenses of such counsel shall be at the expense of such Indemnified Person
\nunless: (i) the Company and the Indemnified Person shall have mutually agreed to
\nthe retention of such counsel; (ii) the Company shall have failed promptly to
\nassume the defense of such proceeding and to employ counsel reasonably
\nsatisfactory to such Indemnified Person in such proceeding; or (iii) in the
\nreasonable judgment of counsel to such Indemnified Person, representation of
\nboth parties by the same counsel would be inappropriate due to actual or
\npotential differing interests between them. The Company shall not be liable for
\nany settlement of any proceeding effected without its prior written consent,
\nwhich consent shall not be unreasonably withheld, delayed or conditioned.
\nWithout the prior written consent of the Indemnified Person, which consent shall
\nnot be unreasonably withheld, delayed or conditioned, the Company shall not
\neffect any settlement of any pending or threatened proceeding in respect of
\nwhich any Indemnified Person is or could have been a party and indemnity could
\nhave been sought hereunder by such Indemnified Person, unless such settlement
\nincludes an unconditional release of such Indemnified Person from all liability
\narising out of such proceeding.<\/p>\n<\/p>\n

4.11 Listing of Securities<\/u>. In the time and manner required by the
\nPrincipal Trading Market, the Company shall prepare and file with such Principal
\nTrading Market an additional shares listing application covering all of the
\nShares and Warrant Shares and shall use its reasonable best efforts to take all
\nsteps necessary to cause all of the Shares and Warrant Shares to be approved for
\nlisting on the Principal Trading Market as promptly as possible thereafter.<\/p>\n<\/p>\n\n\n\n\n
\n

29<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

4.12 Form D; Blue Sky<\/u>. The Company agrees to timely file a Form D with
\nrespect to the Securities as required under Regulation D and to provide a copy
\nthereof, promptly upon the written request of any Purchaser. The Company, on or
\nbefore the Closing Date, shall take such action as the Company shall reasonably
\ndetermine is necessary in order to obtain an exemption for or to qualify the
\nSecurities for sale to the Purchasers at the Closing pursuant to this Agreement
\nunder applicable securities or “Blue Sky” laws of the states of the United
\nStates (or to obtain an exemption from such qualification) and shall provide
\nevidence of such actions promptly upon the written request of any Purchaser.\n<\/p>\n<\/p>\n

4.13 Delivery of Shares and Warrants After Closing <\/u>. The Company shall
\ndeliver, or cause to be delivered, the respective Shares and Warrants purchased
\nby each Purchaser to such Purchaser within three Trading Days of the Closing
\nDate (unless such Purchaser has specified to the Company at the time of
\nexecution of this Agreement that it shall settle “delivery versus payment” in
\nwhich case such Shares and Warrants shall be delivered on or prior to the
\nClosing Date).<\/p>\n<\/p>\n

4.14 Subsequent Equity Sales<\/u>. From the date hereof until 60 days after
\nthe Effective Date of the Initial Registration Statement (as defined in the
\nRegistration Rights Agreement), the Company shall not issue shares of Common
\nStock or Common Stock Equivalents; provided, however<\/em>, the 60-day period
\nset forth in this Section 4.15 shall be extended for the number of Trading Days
\nduring such period in which (i) trading in the Common Stock is suspended by any
\nTrading Market within such 60-day period, or (ii) within 60 days of the
\nEffective Date of the Initial Registration Statement,, the Registration
\nStatement is not effective or the prospectus included in the Registration
\nStatement may not be used by the Purchasers for the resale of the Shares and
\nWarrant Shares. Notwithstanding the foregoing, in no event shall this Section
\n4.15 prohibit the Company from issuing shares of Common Stock or Common Stock
\nEquivalents (i) in connection with acquisitions or strategic transactions
\napproved by a majority of the disinterested directors of the Company, provided
\nthat any such issuance shall only be to a Person which is, itself or through its
\nSubsidiaries, an operating company in a business synergistic with the business
\nof the Company and in which the Company receives benefits in addition to the
\ninvestment of funds, but shall not include a transaction in which the Company is
\nissuing securities primarily for the purpose of raising capital or to an entity
\nwhose primary business is investing in securities, (ii) upon the exercise of any
\noptions or warrants outstanding on the date hereof, (iii) upon the exercise of
\nthe Warrants or (iv) to employees, directors or consultants pursuant to any
\nstock option or equity incentive or employee stock purchase plan.<\/p>\n<\/p>\n

Article V<\/p>\n

\n

CONDITIONS PRECEDENT TO CLOSING<\/p>\n

\n

5.1 Conditions Precedent to the Obligations of the Purchasers to Purchase
\nSecurities<\/u>. The obligation of each Purchaser to acquire Shares and Warrants
\nat the Closing is subject to the fulfillment to such Purchaser153s satisfaction,
\non or prior to the Closing Date, of each of the following conditions, any of
\nwhich may be waived by such Purchaser (as to itself only):<\/p>\n<\/p>\n

(a) Representations and Warranties<\/u>. The representations and warranties
\nof the Company contained herein shall be true and correct in all material
\nrespects (except for those representations and warranties which are qualified as
\nto materiality, in which case such representations and warranties shall be true
\nand correct in all respects) as of the date when made and as of the Closing
\nDate, as though made on and as of such date, except for such representations and
\nwarranties that speak as of a specific date.<\/p>\n<\/p>\n\n\n\n\n
\n

30<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(b) Performance<\/u>. The Company shall have performed, satisfied and
\ncomplied in all material respects with all covenants, agreements and conditions
\nrequired by the Transaction Documents to be performed, satisfied or complied
\nwith by it at or prior to the Closing.<\/p>\n<\/p>\n

(c) No Injunction<\/u>. No statute, rule, regulation, executive order,
\ndecree, ruling or injunction shall have been enacted, entered, promulgated or
\nendorsed by any court or governmental authority of competent jurisdiction that
\nprohibits the consummation of any of the transactions contemplated by the
\nTransaction Documents.<\/p>\n<\/p>\n

(d) Consents<\/u>. The Company shall have obtained in a timely fashion any
\nand all consents, permits, approvals, registrations and waivers necessary for
\nconsummation of the purchase and sale of the Securities at the Closing
\n(including all Required Approvals), all of which shall be and remain so long as
\nnecessary in full force and effect.<\/p>\n<\/p>\n

(e) Adverse Change<\/u>. Since the date of execution of this Agreement, no
\nevent or series of events shall have occurred that has had or would reasonably
\nbe expected to have a Material Adverse Effect.<\/p>\n<\/p>\n

(f) No Suspensions of Trading in Common Stock<\/u>. The Common Stock shall
\nnot have been suspended, as of the Closing Date, by the Commission or the
\nPrincipal Trading Market from trading on the Principal Trading Market nor shall
\nsuspension by the Commission or the Principal Trading Market have been
\nthreatened, as of the Closing Date, either (A) in writing by the Commission or
\nthe Principal Trading Market or (B) by falling below the minimum listing
\nmaintenance requirements of the Principal Trading Market.<\/p>\n<\/p>\n

(g) Company Deliverables<\/u>. The Company shall have delivered the Company
\nDeliverables in accordance with Section 2.2(a).<\/p>\n<\/p>\n

(h) Compliance Certificate<\/u>. The Company shall have delivered to each
\nPurchaser a certificate, dated as of the Closing Date and signed by its Chief
\nExecutive Officer or its Chief Financial Officer, certifying to the fulfillment
\nof the conditions specified in Sections 5.1(a) and (b) in the form attached
\nhereto as Exhibit G<\/u>.<\/p>\n<\/p>\n

(i) Minimum Proceeds<\/u>. The Company shall have received aggregate gross
\nproceeds of no less than $15.0 million.<\/p>\n<\/p>\n

(j) Termination<\/u>. This Agreement shall not have been terminated as to
\nsuch Purchaser in accordance with Section 6.18 herein.<\/p>\n<\/p>\n

5.2 Conditions Precedent to the Obligations of the Company to sell
\nSecurities<\/u>. The Company’s obligation to sell and issue the Shares and
\nWarrants at the Closing to the Purchasers is subject to the fulfillment to the
\nsatisfaction of the Company on or prior to the Closing Date of the following
\nconditions, any of which may be waived by the Company:<\/p>\n<\/p>\n

(a) Representations and Warranties<\/u>. The representations and warranties
\nmade by the Purchasers in Section 3.2 hereof shall be true and correct in all
\nmaterial respects (except for those representations and warranties which are
\nqualified as to materiality, in which case such representations and warranties
\nshall be true and correct in all respects) as of the date when made, and as of
\nthe Closing Date as though made on and as of such date, except for
\nrepresentations and warranties that speak as of a specific date.<\/p>\n<\/p>\n\n\n\n\n
\n

31<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

(b) Performance<\/u>. Such Purchaser shall have performed, satisfied and
\ncomplied in all material respects with all covenants, agreements and conditions
\nrequired by the Transaction Documents to be performed, satisfied or complied
\nwith by such Purchaser at or prior to the Closing Date.<\/p>\n<\/p>\n

(c) No Injunction<\/u>. No statute, rule, regulation, executive order,
\ndecree, ruling or injunction shall have been enacted, entered, promulgated or
\nendorsed by any court or governmental authority of competent jurisdiction that
\nprohibits the consummation of any of the transactions contemplated by the
\nTransaction Documents.<\/p>\n<\/p>\n

(d) Consents<\/u>. The Company shall have obtained in a timely fashion any
\nand all consents, permits, approvals, registrations and waivers necessary for
\nconsummation of the purchase and sale of the Securities at the Closing
\n(including all Required Approvals), all of which shall be and remain so long as
\nnecessary in full force and effect.<\/p>\n<\/p>\n

(e) Purchasers Deliverables<\/u>. Such Purchaser shall have delivered its
\nPurchaser Deliverables in accordance with Section 2.2(b).<\/p>\n<\/p>\n

(f) Termination<\/u>. This Agreement shall not have been terminated as to
\nsuch Purchaser in accordance with Section 6.18 herein.<\/p>\n<\/p>\n

Article VI
\nMISCELLANEOUS<\/p>\n

\n

6.1 Fees and Expenses<\/u>. Except as otherwise expressly set forth in the
\nCompany153s engagement letter with the Placement Agent, the Company and each
\nPurchaser, severally and not jointly with any other Purchaser, shall pay the
\nfees and expenses of their respective advisers, counsel, accountants and other
\nexperts, if any, and all other expenses incurred by such party in connection
\nwith the negotiation, preparation, execution, delivery and performance of this
\nAgreement. The Company shall pay all Transfer Agent fees, stamp taxes and other
\ntaxes and duties levied in connection with the sale and issuance of the
\nSecurities to the Purchasers. Each Purchaser, severally and not jointly with any
\nother Purchaser, shall be responsible for all other tax liability that may arise
\nas a result of holding or transferring the Securities by it.<\/p>\n<\/p>\n

6.2 Entire Agreement<\/u>. The Transaction Documents, together with the
\nexhibits and schedules thereto, contain the entire understanding of the parties
\nwith respect to the subject matter hereof and supersede all prior agreements,
\nunderstandings, discussions and representations, oral or written, with respect
\nto such matters, which the parties acknowledge have been merged into such
\ndocuments, exhibits and schedules. At or after the Closing, and without further
\nconsideration, the Company and the Purchasers will execute and deliver to the
\nother such further documents as may be reasonably requested in order to give
\npractical effect to the intention of the parties under the Transaction
\nDocuments.<\/p>\n<\/p>\n\n\n\n\n
\n

32<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6.3 Notices<\/u>. Any and all notices or other communications or deliveries
\nrequired or permitted to be provided hereunder shall be in writing and shall be
\ndeemed given and effective on the earliest of (a) the date of transmission, if
\nsuch notice or communication is delivered via facsimile (provided the sender
\nreceives a machine-generated confirmation of successful transmission) at the
\nfacsimile number specified in this Section 6.3 prior to 5:00 p.m., New York City
\ntime, on a Trading Day, (b) the next Trading Day after the date of transmission,
\nif such notice or communication is delivered via facsimile at the facsimile
\nnumber specified in this Section 6.3 on a day that is not a Trading Day or later
\nthan 5:00 p.m., New York City time, on any Trading Day, (c) the Trading Day
\nfollowing the date of mailing, if sent by U.S. nationally recognized overnight
\ncourier service with next day delivery specified, or (d) upon actual receipt by
\nthe party to whom such notice is required to be given. The address for such
\nnotices and communications shall be as follows:<\/p>\n<\/p>\n

If to the Company: Transgenomic, Inc.<\/p>\n<\/p>\n

12325 Emmet Street<\/p>\n<\/p>\n

Omaha, NE 68164<\/p>\n<\/p>\n

Telephone No.: (402) 452-5400<\/p>\n<\/p>\n

Facsimile No.: (402) 452-5401<\/p>\n<\/p>\n

Attention: Chief Financial Officer<\/p>\n<\/p>\n

With a copy to (which shall not constitute notice):<\/p>\n<\/p>\n

Husch Blackwell LLP<\/p>\n<\/p>\n

1620 Dodge Street<\/p>\n<\/p>\n

Omaha, NE 68102<\/p>\n<\/p>\n

Telephone No.: (402) 964-5000<\/p>\n<\/p>\n

Facsimile No.: (402) 964-5050<\/p>\n<\/p>\n

Attention: David Gardels, Esq.<\/p>\n<\/p>\n\n\n\n
<\/td>\n\n

If to a Purchaser:<\/p>\n<\/td>\n

\n

To the address set forth under such Purchaser153s name on the signature page
\nhereof;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

or such other address as may be designated in writing hereafter, in the same
\nmanner, by such Person.<\/p>\n<\/p>\n

6.4 Amendments; Waivers; No Additional Consideration<\/u>. No provision of
\nthis Agreement may be waived, modified, supplemented or amended except in a
\nwritten instrument signed, in the case of an amendment, by the Company and the
\nPurchasers holding or having the right to acquire 66 2\/3% of the Shares and the
\nWarrant Shares on a fully-diluted basis at the time of such amendment (which
\namendment shall be binding on all Purchasers or, in the case of a waiver, by the
\nparty against whom enforcement of any such waiver is sought; provided, that any
\namendment, waiver modification or supplement of this Agreement that modifies the
\nSubscription Amount of any Purchaser, the Purchase Price or Section 2.1(a) or
\n(c), Section 2.2, Section 3.1(aa). Section 4.6 or this Section 6.4 of this
\nAgreement or causes any such Purchaser to assume any additional liability or
\nmaterial obligation, may be effected only pursuant to a written instrument
\nsigned by the Company and such Purchaser. No waiver of any default with respect
\nto any provision, condition or requirement of this Agreement shall be deemed to
\nbe a continuing waiver in the future or a waiver of any subsequent default or a
\nwaiver of any other provision, condition or requirement hereof, nor shall any
\ndelay or omission of either party to exercise any right hereunder in any manner
\nimpair the exercise of any such right. No consideration shall be offered or paid
\nto any Purchaser to amend or consent to a waiver or modification of any
\nprovision of any Transaction Document unless the same consideration is also
\noffered to all Purchasers who then hold Securities.<\/p>\n<\/p>\n\n\n\n\n
\n

33<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6.5 Construction<\/u>. The headings herein are for convenience only, do not
\nconstitute a part of this Agreement and shall not be deemed to limit or affect
\nany of the provisions hereof. The language used in this Agreement will be deemed
\nto be the language chosen by the parties to express their mutual intent, and no
\nrules of strict construction will be applied against any party. This Agreement
\nshall be construed as if drafted jointly by the parties, and no presumption or
\nburden of proof shall arise favoring or disfavoring any party by virtue of the
\nauthorship of any provisions of this Agreement or any of the Transaction
\nDocuments.<\/p>\n<\/p>\n

6.6 Successors and Assigns<\/u>. The provisions of this Agreement shall
\ninure to the benefit of and be binding upon the parties and their successors and
\npermitted assigns. This Agreement, or any rights or obligations hereunder, may
\nnot be assigned by the Company without the written consent of Purchasers holding
\nor having the right to acquire 66 2\/3% of the Shares and the Warrant Shares on a
\nfully-diluted basis at the time of such consent except to a successor in the
\nevent of a Fundamental Transaction.. Any Purchaser may assign its rights
\nhereunder in whole or in part to any Person to whom such Purchaser assigns or
\ntransfers any Securities in compliance with the Transaction Documents and
\napplicable law, provided that such transferee shall agree in writing to be
\nbound, with respect to the transferred Securities, by the terms and conditions
\nof this Agreement that apply to the “Purchasers”.<\/p>\n<\/p>\n

6.7 No Third-Party Beneficiaries<\/u>. This Agreement is intended for the
\nbenefit of the parties hereto and their respective successors and permitted
\nassigns and is not for the benefit of, nor may any provision hereof be enforced
\nby, any other Person, except (i) the Placement Agent is an intended third party
\nbeneficiary of Article III hereof and (ii) each Purchaser Party is an
\nintended third party beneficiary of Section 4.10<\/u>.<\/p>\n<\/p>\n

6.8 Governing Law<\/u>. All questions concerning the construction,
\nvalidity, enforcement and interpretation of this Agreement shall be governed by
\nand construed and enforced in accordance with the internal laws of the State of
\nNew York, without regard to the principles of conflicts of law thereof. Each
\nparty agrees that all Proceedings concerning the interpretations, enforcement
\nand defense of the transactions contemplated by this Agreement and any other
\nTransaction Documents (whether brought against a party hereto or its respective
\nAffiliates, employees or agents) shall be commenced exclusively in the New York
\nCourts. Each party hereto hereby irrevocably submits to the exclusive
\njurisdiction of the New York Courts for the adjudication of any dispute
\nhereunder or in connection herewith or with any transaction contemplated hereby
\nor discussed herein (including with respect to the enforcement of any of the
\nTransaction Documents), and hereby irrevocably waives, and agrees not to assert
\nin any Proceeding, any claim that it is not personally subject to the
\njurisdiction of any such New York Court, or that such Proceeding has been
\ncommenced in an improper or inconvenient forum. Each party hereto hereby
\nirrevocably waives personal service of process and consents to process being
\nserved in any such Proceeding by mailing a copy thereof via registered or
\ncertified mail or overnight delivery (with evidence of delivery) to such party
\nat the address in effect for notices to it under this Agreement and agrees that
\nsuch service shall constitute good and sufficient service of process and notice
\nthereof. Nothing contained herein shall be deemed to limit in any way any right
\nto serve process in any manner permitted by law. EACH PARTY HERETO
\nHEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW,
\nANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
\nRELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.<\/strong>\n<\/p>\n<\/p>\n\n\n\n\n
\n

34<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6.9 Survival<\/u>. Subject to applicable statute of limitations, the
\nrepresentations, warranties agreements and covenants contained herein shall
\nsurvive the Closing and the delivery of the Securities.<\/p>\n<\/p>\n

6.10 Execution<\/u>. This Agreement may be executed in two or more
\ncounterparts, all of which when taken together shall be considered one and the
\nsame agreement and shall become effective when counterparts have been signed by
\neach party and delivered to the other party, it being understood that both
\nparties need not sign the same counterpart. In the event that any signature is
\ndelivered by facsimile transmission, or by e-mail delivery of a “.pdf” format
\ndata file, such signature shall create a valid and binding obligation of the
\nparty executing (or on whose behalf such signature is executed) with the same
\nforce and effect as if such facsimile signature page were an original thereof.\n<\/p>\n<\/p>\n

6.11 Severability<\/u>. If any provision of this Agreement is held to be
\ninvalid or unenforceable in any respect, the validity and enforceability of the
\nremaining terms and provisions of this Agreement shall not in any way be
\naffected or impaired thereby and the parties will attempt to agree upon a valid
\nand enforceable provision that is a reasonable substitute therefor, and upon so
\nagreeing, shall incorporate such substitute provision in this Agreement.<\/p>\n<\/p>\n

6.12 Rescission and Withdrawal Right.<\/u> Notwithstanding anything to the
\ncontrary contained in (and without limiting any similar provisions of) the
\nTransaction Documents, whenever any Purchaser exercises a right, election,
\ndemand or option under a Transaction Document and the Company does not timely
\nperform its related obligations within the periods therein provided, then such
\nPurchaser may rescind or withdraw, in its sole discretion from time to time upon
\nwritten notice to the Company, any relevant notice, demand or election in whole
\nor in part without prejudice to its future actions and rights.<\/p>\n<\/p>\n

6.13 Replacement of Securities<\/u>. If any certificate or instrument
\nevidencing any Securities is mutilated, lost, stolen or destroyed, the Company
\nshall issue or cause to be issued in exchange and substitution for and upon
\ncancellation thereof, or in lieu of and substitution therefor, a new certificate
\nor instrument, but only upon receipt of evidence reasonably satisfactory to the
\nCompany and the Transfer Agent of such loss, theft or destruction and the
\nexecution by the holder thereof of a customary lost certificate affidavit of
\nthat fact and an agreement to indemnify and hold harmless the Company and the
\nTransfer Agent for any losses in connection therewith or, if required by the
\nTransfer Agent, a bond in such form and amount as is required by the Transfer
\nAgent. The applicants for a new certificate or instrument under such
\ncircumstances shall also pay any reasonable third-party costs associated with
\nthe issuance of such replacement Securities. If a replacement certificate or
\ninstrument evidencing any Securities is requested due to a mutilation thereof,
\nthe Company may require delivery of such mutilated certificate or instrument as
\na condition precedent to any issuance of a replacement.<\/p>\n<\/p>\n\n\n\n\n
\n

35<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6.14 Remedies<\/u>. In addition to being entitled to exercise all rights
\nprovided herein or granted by law, including recovery of damages, each of the
\nPurchasers and the Company will be entitled to specific performance under the
\nTransaction Documents. The parties agree that monetary damages may not be
\nadequate compensation for any loss incurred by reason of any breach of
\nobligations described in the foregoing sentence and hereby agree to waive in any
\naction for specific performance of any such obligation (other than in connection
\nwith any action for a temporary restraining order) the defense that a remedy at
\nlaw would be adequate.<\/p>\n<\/p>\n

6.15 Payment Set Aside<\/u>. To the extent that the Company makes a payment
\nor payments to any Purchaser pursuant to any Transaction Document or a Purchaser
\nenforces or exercises its rights thereunder, and such payment or payments or the
\nproceeds of such enforcement or exercise or any part thereof are subsequently
\ninvalidated, declared to be fraudulent or preferential, set aside, recovered
\nfrom, disgorged by or are required to be refunded, repaid or otherwise restored
\nto the Company, a trustee, receiver or any other person under any law
\n(including, without limitation, any bankruptcy law, state or federal law, common
\nlaw or equitable cause of action), then to the extent of any such restoration
\nthe obligation or part thereof originally intended to be satisfied shall be
\nrevived and continued in full force and effect as if such payment had not been
\nmade or such enforcement or setoff had not occurred.<\/p>\n<\/p>\n

6.16 Adjustments in Share Numbers and Prices<\/u>. In the event of any
\nstock split, subdivision, dividend or distribution payable in shares of Common
\nStock (or other securities or rights convertible into, or entitling the holder
\nthereof to receive directly or indirectly shares of Common Stock), combination
\nor other similar recapitalization or event occurring after the date hereof and
\nprior to the Closing, each reference in any Transaction Document to a number of
\nshares or a price per share shall be deemed to be amended to appropriately
\naccount for such event.<\/p>\n<\/p>\n

6.17 Independent Nature of Purchasers’ Obligations and Rights<\/u>. The
\nobligations of each Purchaser under any Transaction Document are several and not
\njoint with the obligations of any other Purchaser, and no Purchaser shall be
\nresponsible in any way for the performance of the obligations of any other
\nPurchaser under any Transaction Document. The decision of each Purchaser to
\npurchase Securities pursuant to the Transaction Documents has been made by such
\nPurchaser independently of any other Purchaser and independently of any
\ninformation, materials, statements or opinions as to the business, affairs,
\noperations, assets, properties, liabilities, results of operations, condition
\n(financial or otherwise) or prospects of the Company or any Subsidiary which may
\nhave been made or given by any other Purchaser or by any agent or employee of
\nany other Purchaser, and no Purchaser and any of its agents or employees shall
\nhave any liability to any other Purchaser (or any other Person) relating to or
\narising from any such information, materials, statement or opinions. Nothing
\ncontained herein or in any Transaction Document, and no action taken by any
\nPurchaser pursuant thereto, shall be deemed to constitute the Purchasers as a
\npartnership, an association, a joint venture or any other kind of entity, or
\ncreate a presumption that the Purchasers are in any way acting in concert or as
\na group with respect to such obligations or the transactions contemplated by the
\nTransaction Documents. Each Purchaser acknowledges that no other Purchaser has
\nacted as agent for such Purchaser in connection with making its investment
\nhereunder and that no Purchaser will be acting as agent of such Purchaser in
\nconnection with monitoring its investment in the Securities or enforcing its
\nrights under the Transaction Documents. Each Purchaser shall be entitled to
\nindependently protect and enforce its rights, including without limitation the
\nrights arising out of this Agreement or out of the other Transaction Documents,
\nand it shall not be necessary for any other Purchaser to be joined as an
\nadditional party in any proceeding for such purpose. Each Purchaser has been
\nrepresented by its own separate legal counsel in its review and negotiation of
\nthe Transaction Documents. For reasons of administrative convenience only,
\nPurchasers and their respective counsels have chosen to communicate with the
\nCompany through Goodwin Procter LLP, counsel to the Placement Agent. Each
\nPurchaser acknowledges that Goodwin Procter LLP has rendered legal advice to the
\nPlacement Agent and not to such Purchaser in connection with the transactions
\ncontemplated hereby, and that each such Purchaser has relied for such matters on
\nthe advice of its own respective counsel. The Company has elected to provide all
\nPurchasers with the same terms and Transaction Documents for the convenience of
\nthe Company and not because it was required or requested to do so by any
\nPurchaser.<\/p>\n<\/p>\n\n\n\n\n
\n

36<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

6.18 Termination<\/u>. This Agreement may be terminated and the sale and
\npurchase of the Shares and the Warrants abandoned at any time prior to the
\nClosing by either the Company or any Purchaser (with respect to itself only)
\nupon written notice to the other, if the Closing has not been consummated on or
\nprior to 5:00 p.m., New York City time, on the Outside Date; provided,
\nhowever<\/em>, that the right to terminate this Agreement under this Section 6.18
\nshall not be available to any Person whose failure to comply with its
\nobligations under this Agreement has been the cause of or resulted in the
\nfailure of the Closing to occur on or before such time. Nothing in this Section
\n6.18 shall be deemed to release any party from any liability for any breach by
\nsuch party of the terms and provisions of this Agreement or the other
\nTransaction Documents or to impair the right of any party to compel specific
\nperformance by any other party of its obligations under this Agreement or the
\nother Transaction Documents. In the event of a termination pursuant to this
\nSection 6.18, the Company shall promptly notify all non-terminating Purchasers.
\nUpon a termination in accordance with this Section 6.18, the Company and the
\nterminating Purchaser(s) shall not have any further obligation or liability
\n(including arising from such termination) to the other, and no Purchaser will
\nhave any liability to any other Purchaser under the Transaction Documents as a
\nresult therefrom. The Company and any Purchaser(s) may extend the term of this
\nAgreement in accordance with the amendment provisions of Section 6.4 herein.<\/p>\n<\/p>\n

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]<\/p>\n

\n\n\n\n\n
\n

37<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibit 10.1<\/p>\n

\n

IN WITNESS WHEREOF, the parties hereto have caused this Securities Purchase
\nAgreement to be duly executed by their respective authorized signatories as of
\nthe date first indicated above.<\/p>\n<\/p>\n\n\n\n\n\n\n\n
<\/td>\n\n

TRANSGENOMIC, INC.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

By:<\/p>\n<\/td>\n

\n

\/s\/ Craig J. Tuttle<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Name: Craig J. Tuttle<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title: President \/ Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
\n[SIGNATURE PAGES for purchasers FOLLOW]<\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
<\/td>\n\n

NAME OF PURCHASER: ________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

By: ____________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Title:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Aggregate Purchase Price (Subscription Amount): $______________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Number of Shares to be Acquired: ______________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Underlying Shares Subject to Warrant: ________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

(50% of the number of Shares to be acquired)<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Tax ID No.: ____________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Address for Notice\/Residency of Purchaser:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Telephone No.: _______________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Facsimile No.: ________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

E-mail Address: ________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Attention: _______________________<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

Delivery Instructions:<\/p>\n<\/td>\n<\/tr>\n

\n

(if different than above)<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

c\/o _______________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Street: ____________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

City\/State\/Zip: ______________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Attention: __________________________<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

Telephone No.: ____________________________<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBITS<\/u><\/strong>:<\/strong><\/p>\n

\n\n\n\n\n\n\n\n\n\n\n
\n

A:<\/p>\n<\/td>\n

\n

Form of Warrant<\/p>\n<\/td>\n<\/tr>\n

\n

B:<\/p>\n<\/td>\n

\n

Form of Registration Rights Agreement<\/p>\n<\/td>\n<\/tr>\n

\n

C-1:<\/p>\n<\/td>\n

\n

Accredited Investor Questionnaire<\/p>\n<\/td>\n<\/tr>\n

\n

C-2:<\/p>\n<\/td>\n

\n

Stock Certificate Questionnaire<\/p>\n<\/td>\n<\/tr>\n

\n

D:<\/p>\n<\/td>\n

\n

Form of Opinion of Company Counsel<\/p>\n<\/td>\n<\/tr>\n

\n

E:<\/p>\n<\/td>\n

\n

Form of Irrevocable Transfer Agent Instructions<\/p>\n<\/td>\n<\/tr>\n

\n

F:<\/p>\n<\/td>\n

\n

Form of Secretary153s Certificate<\/p>\n<\/td>\n<\/tr>\n

\n

G:<\/p>\n<\/td>\n

\n

Form of Officer153s Certificate<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibit A<\/u><\/p>\n

\n

Form of Warrant<\/p>\n

\n

(Filed as Exhibit 10.3)<\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibit B<\/u><\/p>\n

\n

Form of Registration Rights Agreement<\/p>\n

\n

(Filed as Exhibit 10.4)<\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Instruction Sheet<\/u><\/p>\n

\n

(to be read in conjunction with the entire Securities Purchase
\nAgreement
\nand Registration Rights Agreement)<\/p>\n

\n\n\n\n
<\/td>\n\n

A.<\/p>\n<\/td>\n

\n

Complete the following items in the Securities Purchase Agreement and\/or
\nRegistration Rights Agreement:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

1.<\/p>\n<\/td>\n

\n

Provide the information regarding the Purchaser requested on the signature
\npage. The Securities Purchase Agreement and the Registration Rights Agreement
\nmust be executed by an individual authorized to bind the Purchaser.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.<\/p>\n<\/td>\n

\n

Exhibit C-1<\/u> : Accredited Investor Questionnaire:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n<\/td>\n\n

Provide the information requested by the Accredited Investor Questionnaire\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

3.<\/p>\n<\/td>\n

\n

Exhibit C-2<\/u> Stock Certificate Questionnaire:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n<\/td>\n\n

Provide the information requested by the Stock Certificate Questionnaire<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

4.<\/p>\n<\/td>\n

\n

Annex B<\/u> to the Registration Rights Agreement : Selling Securityholder
\nNotice and Questionnaire<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n<\/td>\n\n

Provide the information requested by the Selling Securityholder Notice and
\nQuestionnaire<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

5.<\/p>\n<\/td>\n

\n

Return the signed Securities Purchase Agreement and Registration Rights
\nAgreement to:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Mary Ann Borgerding<\/p>\n<\/p>\n

Craig-Hallum Capital Group LLC<\/p>\n<\/p>\n

222 South Ninth Street, Suite 350<\/p>\n<\/p>\n

Minneapolis, MN 55402<\/p>\n<\/p>\n

Tel: (612) 334-6346<\/p>\n<\/p>\n

Fax: (612) 334-6399<\/p>\n<\/p>\n

Email: mborgerding@craig-hallum.com<\/p>\n<\/p>\n\n\n\n
<\/td>\n\n

B.<\/p>\n<\/td>\n

\n

Instructions regarding the transfer of funds for the purchase of Securities
\nis set forth below.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n
<\/td>\n\n

Name of Bank:<\/p>\n<\/td>\n

\n

Private Bank Minnesota<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

City\/State of Bank:<\/p>\n<\/td>\n

\n

Minneapolis, MN<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

ABA Number:<\/p>\n<\/td>\n

\n

091005836<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Name of Account:<\/p>\n<\/td>\n

\n

TBIO Escrow Account<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Account Number:<\/p>\n<\/td>\n

\n

3040938<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT C-1<\/u><\/p>\n

\n

ACCREDITED INVESTOR QUESTIONNAIRE<\/strong><\/p>\n

\n

(ALL INFORMATION WILL BE TREATED
\nCONFIDENTIALLY)<\/strong><\/p>\n

\n

To: Transgenomic, Inc.<\/p>\n<\/p>\n

This Investor Questionnaire (“Questionnaire<\/u>“) must be completed by
\neach potential investor in connection with the offer and sale of the shares of
\nthe common stock, par value $0.01 per share, certain warrants and shares of
\ncommon stock that may be issued upon exercise of such warrants (collectively,
\nthe “Securities<\/u>“), of Transgenomic, Inc., a Delaware corporation (the
\n“Corporation<\/u>“). The Securities are being offered and sold by the
\nCorporation without registration under the Securities Act of 1933, as amended
\n(the “Act<\/u>“), and the securities laws of certain states, in reliance on
\nthe exemptions contained in Section 4(2) of the Act and on Regulation D
\npromulgated thereunder and in reliance on similar exemptions under applicable
\nstate laws. The Corporation must determine that a potential investor meets
\ncertain suitability requirements before offering or selling Securities to such
\ninvestor. The purpose of this Questionnaire is to assure the Corporation that
\neach investor will meet the applicable suitability requirements. The information
\nsupplied by you will be used in determining whether you meet such criteria, and
\nreliance upon the private offering exemptions from registration is based in part
\non the information herein supplied.<\/p>\n<\/p>\n

This Questionnaire does not constitute an offer to sell or a solicitation of
\nan offer to buy any security. Your answers will be kept strictly confidential.
\nHowever, by signing this Questionnaire, you will be authorizing the Corporation
\nto provide a completed copy of this Questionnaire to such parties as the
\nCorporation deems appropriate in order to ensure that the offer and sale of the
\nSecurities will not result in a violation of the Act or the securities laws of
\nany state and that you otherwise satisfy the suitability standards applicable to
\npurchasers of the Securities. All potential investors must answer all applicable
\nquestions and complete, date and sign this Questionnaire. Please print or type
\nyour responses and attach additional sheets of paper if necessary to complete
\nyour answers to any item.<\/p>\n<\/p>\n

PART A. BACKGROUND INFORMATION<\/u><\/p>\n<\/p>\n

Name of Beneficial Owner of the Securities:
\n_______________________________________________________________<\/p>\n<\/p>\n

Business Address:
\n___________________________________________________________________________________\n<\/p>\n<\/p>\n

(Number and Street)<\/p>\n<\/p>\n

\n__________________________________________________________________________________________________\n<\/p>\n<\/p>\n\n\n\n
\n

(City)<\/p>\n<\/td>\n

\n

(State)<\/p>\n<\/td>\n

\n

(Zip Code)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Telephone Number:
\n(___)_____________________________________________________________________________\n<\/p>\n<\/p>\n

If a corporation, partnership, limited liability company, trust or other
\nentity:<\/em><\/p>\n<\/p>\n

Type of entity:
\n_____________________________________________________________________________________\n<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

State of formation:______________________ Approximate Date of formation:
\n__________________________________<\/p>\n<\/p>\n

Were you formed for the purpose of investing in the securities being offered?\n<\/p>\n<\/p>\n

Yes ____ No ____<\/p>\n<\/p>\n

If an individua<\/u><\/em>l:<\/em><\/p>\n<\/p>\n

Residence Address:
\n__________________________________________________________________________________\n<\/p>\n<\/p>\n

(Number and Street)<\/p>\n<\/p>\n

\n__________________________________________________________________________________________________\n<\/p>\n<\/p>\n\n\n\n
\n

(City)<\/p>\n<\/td>\n

\n

(State)<\/p>\n<\/td>\n

\n

(Zip Code)<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Telephone Number:
\n(___)______________________________________________________________________________\n<\/p>\n<\/p>\n

Age: __________ Citizenship: ____________ Where registered to vote:
\n_______________<\/p>\n<\/p>\n

Set forth in the space provided below the state(s), if any, in the United
\nStates in which you maintained your residence during the past two years and the
\ndates during which you resided in each state:<\/p>\n<\/p>\n

Are you a director or executive officer of the Corporation?<\/p>\n<\/p>\n

Yes ____ No ____<\/p>\n<\/p>\n

Social Security or Taxpayer Identification No.
\n______________________________________________________________<\/p>\n<\/p>\n

PART B. ACCREDITED INVESTOR QUESTIONNAIRE<\/u><\/p>\n<\/p>\n

In order for the Company to offer and sell the Securities in conformance with
\nstate and federal securities laws, the following information must be obtained
\nregarding your investor status. Please initial each category<\/u> applicable
\nto you as a Purchaser of Securities of the Company.<\/p>\n<\/p>\n

__ (1) A bank as defined in Section 3(a)(2) of the Securities Act, or any
\nsavings and loan association or other institution as defined in Section
\n3(a)(5)(A) of the Securities Act whether acting in its individual or fiduciary
\ncapacity;<\/p>\n<\/p>\n

__ (2) A broker or dealer registered pursuant to Section 15 of the Securities
\nExchange Act of 1934;<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (3)<\/p>\n<\/td>\n

\n

An insurance company as defined in Section 2(13) of the Securities Act;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (4)<\/p>\n<\/td>\n

\n

An investment company registered under the Investment Company Act of 1940 or
\na business development company as defined in Section 2(a)(48) of such act;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (5)<\/p>\n<\/td>\n

\n

A Small Business Investment Company licensed by the U.S. Small Business
\nAdministration under Section 301(c) or (d) of the Small Business Investment Act
\nof 1958;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (6)<\/p>\n<\/td>\n

\n

A plan established and maintained by a state, its political subdivisions, or
\nany agency or instrumentality of a state or its political subdivisions, for the
\nbenefit of its employees, if such plan has total assets in excess of $5,000,000;\n<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (7)<\/p>\n<\/td>\n

\n

An employee benefit plan within the meaning of the Employee Retirement Income
\nSecurity Act of 1974, if the investment decision is made by a plan fiduciary, as
\ndefined in Section 3(21) of such act, which is either a bank, savings and loan
\nassociation, insurance company, or registered investment adviser, or if the
\nemployee benefit plan has total assets in excess of $5,000,000 or, if a
\nself-directed plan, with investment decisions made solely by persons that are
\naccredited investors;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (8)<\/p>\n<\/td>\n

\n

A private business development company as defined in Section 202(a)(22) of
\nthe Investment Advisers Act of 1940;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

__ (9)<\/p>\n<\/td>\n

\n

An organization described in Section 501(c)(3) of the Internal Revenue Code,
\na corporation, Massachusetts or similar business trust, or partnership, not
\nformed for the specific purpose of acquiring the Securities, with total assets
\nin excess of $5,000,000;<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

__ (10) A trust, with total assets in excess of $5,000,000, not formed for
\nthe specific purpose of acquiring the Securities, whose purchase is directed by
\na sophisticated person who has such knowledge and experience in financial and
\nbusiness matters that such person is capable of evaluating the merits and risks
\nof investing in the Company;<\/p>\n<\/p>\n

___(11) A natural person whose individual net worth, or joint net worth with
\nthat person153s spouse, at the time of his purchase exceeds $1,000,000 (excluding
\nthe value of such persons153 primary residence);<\/p>\n<\/p>\n

___(12) A natural person who had an individual income in excess of $200,000
\nin each of the two most recent years, or joint income with that person153s spouse
\nin excess of $300,000, in each of those years, and has a reasonable expectation
\nof reaching the same income level in the current year;<\/p>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

___(13) An executive officer or director of the Company;<\/p>\n<\/p>\n

___(14) An entity in which all of the equity owners qualify under any of the
\nabove subparagraphs. If the undersigned belongs to this investor category only,
\nlist the equity owners of the undersigned, and the investor category which each
\nsuch equity owner satisfies.<\/p>\n<\/p>\n

A. FOR EXECUTION BY AN INDIVIDUAL:<\/strong><\/p>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

By<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Date<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Print Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

B. FOR EXECUTION BY AN ENTITY:<\/strong><\/p>\n<\/p>\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

Entity Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

By<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Date<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Print Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

C.<\/strong><\/p>\n<\/td>\n

\n

ADDITIONAL SIGNATURES (if required by partnership, corporation or
\ntrust document):<\/strong><\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

Entity Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

By<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Date<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Print Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

Entity Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/td>\n\n

By<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

Date<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Print Name:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibit C-2<\/u><\/p>\n

\n

Stock Certificate Questionnaire<\/p>\n

\n

Pursuant to Section 2.2(b) of the Agreement, please provide us
\nwith the following information:<\/p>\n

\n\n\n\n\n\n\n\n\n\n\n\n\n\n
\n

1.<\/p>\n<\/td>\n

\n

The exact name that the Securities are to be registered in (this is the name
\nthat will appear on the stock certificate(s)). You may use a nominee name if
\nappropriate:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

2.<\/p>\n<\/td>\n

\n

The relationship between the Purchaser of the Securities and the Registered
\nHolder listed in response to Item 1 above:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

3.<\/p>\n<\/td>\n

\n

The mailing address, telephone and telecopy number of the Registered Holder
\nlisted in response to Item 1 above:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

4.<\/p>\n<\/td>\n

\n

The Tax Identification Number (or, if an individual, the Social Security
\nNumber) of the Registered Holder listed in response to Item 1 above:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Exhibit D<\/u><\/p>\n

\n

Form of Opinion of Company Counsel<\/p>\n

\n\n\n\n
<\/td>\n\n

1.<\/p>\n<\/td>\n

\n

The Company is a corporation existing and in good standing under the laws of
\nthe State of Delaware, with the corporate power and authority to (i) execute,
\ndeliver and perform the Purchase Agreement, the Registration Rights Agreement
\nand the Warrants (collectively, the “Transaction
\nDocuments<\/em><\/strong>“) and (ii) conduct its business and own or lease its
\nproperties as described in the Company153s Annual Report on Form 10-K for the
\nfiscal year ended December 31, 2010. The Company is qualified to do business as
\na foreign corporation in (i) the State of California and (ii) the State of
\nNebraska.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.<\/p>\n<\/td>\n

\n

Each of the Transaction Documents has been authorized by all necessary
\ncorporate action of, and executed and delivered by, the Company, and constitutes
\na valid and binding obligation of the Company, enforceable against the Company
\nin accordance with its terms.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

3.<\/p>\n<\/td>\n

\n

The execution, delivery and performance of the Transaction Documents by the
\nCompany, the compliance with the terms and provisions thereof by the Company and
\nthe issuance and sale of the Securities by the Company will not violate any law
\nor regulation known to us to be generally applicable to transactions of this
\ntype (other than federal and state securities or “blue sky” laws, as to which no
\nopinion is expressed in this paragraph) or violate or result in a default under
\nany of the terms and provisions of Restated Certificate of Incorporation, as
\namended (the “Certificate of Incorporation<\/em><\/strong>“), or
\nAmended Bylaws of the Company (the “Bylaws<\/em><\/strong>“) or any
\nagreement to which the Company is a party or bound (this opinion being limited
\n(i) to those agreements identified on Exhibit B<\/u> attached hereto and (ii)
\nin that we express no opinion with respect to any violation or default (a)
\narising under or based upon any cross-default provision insofar as it relates to
\na violation or default under an agreement not identified on Exhibit B<\/u>
\nattached hereto or (b) arising as a result of any violation or default under any
\nagreement or covenant by failure to comply with any financial or numerical
\nrequirement requiring computation).<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

4.<\/p>\n<\/td>\n

\n

The Company has an authorized equity capitalization of [________] shares of
\nCommon Stock and [______] shares of preferred stock.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

5.<\/p>\n<\/td>\n

\n

The Shares have been authorized by all necessary corporate action of the
\nCompany and, when issued and delivered to the Purchasers pursuant to the
\nPurchase Agreement against payment of the consideration therefor as provided
\ntherein, will be validly issued, fully paid and nonassessable.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

6.<\/p>\n<\/td>\n

\n

The Warrant Shares initially issuable upon exercise of the Warrants have been
\nauthorized by all necessary corporate action of the Company and, when and if
\nissued upon exercise of the Warrants in accordance with the terms thereof
\nagainst payment of the consideration therefor as provided therein, will be
\nvalidly issued, fully paid and nonassessable.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

7.<\/p>\n<\/td>\n

\n

The holders of shares of Common Stock are not entitled to any (i) pre-emptive
\nrights pursuant to the General Corporation Law of the State of Delaware (the
\n“DGCL<\/em><\/strong>“) or the Certificate of Incorporation or Bylaws
\nor (ii) contractual pre-emptive rights under those agreements identified on
\nExhibit B<\/u> attached hereto.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

8.<\/p>\n<\/td>\n

\n

No consent, approval, authorization or order of, or filing with, any
\ngovernmental agency or body or any court is required in connection with the
\nexecution, delivery or performance of the Transaction Documents by the Company,
\nor in connection with the issuance or sale of the Securities by the Company to
\nthe Purchasers, except (i) for the filing of Form D with the Securities and
\nExchange Commission, (ii) periodic and other reporting requirements under the
\nSecurities Exchange Act of 1934 and the rules and regulations thereunder and
\n(iii) as may be required under state securities or “blue sky” laws.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

9.<\/p>\n<\/td>\n

\n

It is not necessary in connection with the offer and sale of the Securities
\nto the Purchasers under the Purchase Agreement to register the Securities under
\nthe Securities Act of 1933 assuming the accuracy of the representations and
\nwarranties of the Purchasers in the Purchase Agreement.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

10.<\/p>\n<\/td>\n

\n

To our actual knowledge, there is no litigation nor any governmental
\nproceeding involving the Company, pending or threatened, that challenges the
\nvalidity or enforceability of the Purchase Agreement or the Registration Rights
\nAgreement, or seeks to enjoin the performance of the Purchase Agreement or the
\nRegistration Rights Agreement by the Company.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

11.<\/p>\n<\/td>\n

\n

The Company is not required to register as an “investment company,” as such
\nterm is defined in the Investment Company Act of 1940.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT E<\/u><\/p>\n

\n

Irrevocable Transfer Agent Instructions<\/p>\n

\n

As of February [___], 2012<\/p>\n

\n

Wells Fargo Bank Minnesota, N.A. – Shareowner Services<\/p>\n<\/p>\n

P.O. Box 64854<\/p>\n<\/p>\n

St. Paul, MN 55164-0854<\/p>\n<\/p>\n

Attn: _________________<\/p>\n<\/p>\n

Ladies and Gentlemen:<\/p>\n<\/p>\n

Reference is made to that certain Securities Purchase Agreement, dated as of
\nFebruary 2, 2012 (the “Agreement”), by and among Transgenomic, Inc., a Delaware
\ncorporation (the “Company”), and the purchasers named on the signature pages
\nthereto (collectively, and including permitted transferees, the “Holders”),
\npursuant to which the Company is issuing to the Holders shares (the “Shares”) of
\nCommon Stock of the Company, par value $0.01 per share (the “Common Stock”), and
\nwarrants (the “Warrants”), which are exercisable into shares of Common Stock
\n(the “Warrant Shares”).<\/p>\n<\/p>\n

This letter shall serve as our irrevocable authorization and direction to you
\n(provided that you are the transfer agent of the Company at such time and the
\nconditions set forth in this letter are satisfied), subject to any stop transfer
\ninstructions that we may issue to you from time to time, if any, to issue
\ncertificates representing shares of Common Stock upon transfer or resale of the
\nShares or Warrant Shares.<\/p>\n<\/p>\n

You acknowledge and agree that so long as you have received written
\nconfirmation from the Company153s legal counsel that a registration statement
\ncovering resales of the Shares and the Warrant Shares has been declared
\neffective by the Securities and Exchange Commission (the “Commission”) under the
\nSecurities Act of 1933, as amended (the “Securities Act”), and a copy of such
\nregistration statement, then, unless otherwise required by law, you shall use
\nyour commercially reasonable efforts to issue the certificates representing the
\nShares or Warrant Shares registered in the names of such Holders or transferees,
\nas the case may be, within three business days of your receipt of a notice of
\ntransfer of Shares or Warrant Shares, and such certificates shall not bear any
\nlegend restricting transfer of the Shares or Warrant Shares thereby and should
\nnot be subject to any stop-transfer restriction.<\/p>\n<\/p>\n

A form of written confirmation from the Company153s outside legal counsel that
\na registration statement covering resales of the Shares and the Warrant Shares
\nhas been declared effective by the Commission under the Securities Act (which
\nconfirmation shall be delivered to you upon effectiveness of the registration
\nstatement) is attached hereto as Annex I<\/u>.<\/p>\n<\/p>\n

Please be advised that the Holders are relying upon this letter as an
\ninducement to enter into the Agreement and, accordingly, each Holder is a third
\nparty beneficiary to these instructions.<\/p>\n<\/p>\n

Please execute this letter in the space indicated to acknowledge your
\nagreement to act in accordance with these instructions.<\/p>\n<\/p>\n

[Signature page follows]<\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n\n\n\n\n\n\n\n\n\n
\n

Very truly yours,<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/tr>\n
\n

TRANSGENOMIC, INC.<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Name:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n

Acknowledged and Agreed:<\/p>\n<\/p>\n

Wells Fargo Bank Minnesota, N.A. – Shareowner Services<\/p>\n<\/p>\n\n\n\n\n\n\n\n
\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Name:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
\n

Title:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/tr>\n
\n

Date: _________________, 2012<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

Annex I<\/u><\/strong><\/p>\n

\n

FORM OF NOTICE OF EFFECTIVENESS OF REGISTRATION
\nSTATEMENT <\/strong><\/p>\n

\n

Wells Fargo Bank Minnesota, N.A. – Shareowner Services<\/p>\n<\/p>\n

P.O. Box 64854<\/p>\n<\/p>\n

St. Paul, MN 55164-0854<\/p>\n<\/p>\n

Attn: _________________<\/p>\n<\/p>\n

Re: Transgenomic, Inc.<\/u><\/p>\n<\/p>\n

Ladies and Gentlemen:<\/p>\n<\/p>\n

Transgenomic, Inc., a Delaware corporation (the “Company<\/em>“), has
\nentered into a Securities Purchase Agreement, dated as of February 2, 2012, with
\nthe buyers named therein (collectively, the “Purchasers<\/em>“) pursuant to
\nwhich the Company issued to the Purchasers shares of the Company153s common stock,
\n$0.01 par value per share (the “Common Stock<\/em>“), and warrants
\nexercisable for shares of Common Stock (the “Warrants<\/em>“). Pursuant to
\nthat certain Registration Rights Agreement of even date, the Company agreed to
\nregister the resale of the Common Stock, including the shares of Common Stock
\nissuable upon exercise of the Warrants (collectively, the “Registrable
\nSecurities<\/em>“), under the Securities Act of 1933, as amended (the
\n“Securities Act<\/em>“). In connection with the Company153s obligations under
\nthe Registration Rights Agreement, on , ____, the Company filed a Registration
\nStatement on Form S-1 (File No. 333- <\/u>) (the “Registration
\nStatement<\/em>“) with the Securities and Exchange Commission (the
\n“Commission<\/em>“) relating to the Registrable Securities which names each
\nof the Purchasers as a selling stockholder thereunder and set forth as
\nExhibit A<\/u> hereto.<\/p>\n<\/p>\n

In connection with the foregoing, we advise you that a member of the
\nCommission153s staff has advised us by telephone that the Commission has entered
\nan order declaring the Registration Statement effective under the Securities Act
\nat ____ [a.m.][p.m.] on __________, ____, and we have no knowledge, after
\ntelephonic inquiry of a member of the staff, that any stop order suspending its
\neffectiveness has been issued or that any proceedings for that purpose are
\npending before, or threatened by, the Commission and the Registrable Securities
\nare available for resale under the Securities Act pursuant to the Registration
\nStatement. Based upon the foregoing, we are of the opinion that as of the date
\nof this opinion, the Registrable Securities have been duly authorized and, when
\nissued by you, will be validly issued, fully paid and non-assessable, and are
\nregistered for resale under the Securities Act under the effective Registration
\nStatement and may be issued without a restrictive legend.<\/p>\n<\/p>\n

This letter shall serve as our standing notice to you that the Common Stock
\nmay be freely transferred by the Purchasers pursuant to the Registration
\nStatement. You need not require further letters from us to effect any future
\nlegend-free issuance or reissuance of shares of Common Stock to the Purchasers
\nor the transferees of the Purchasers, as the case may be, as contemplated by the
\nCompany153s Irrevocable Transfer Agent Instructions dated __________, 2012,
\nprovided at the time of such reissuance, the Company has not otherwise notified
\nyou that the Registration Statement is unavailable for the resale of the
\nRegistrable Securities. This letter shall serve as our standing instructions
\nwith regard to this matter.<\/p>\n<\/p>\n

[Signature page follows]<\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n\n\n\n
<\/td>\n\n

Very truly yours,<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

By:<\/p>\n<\/td>\n

<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n\n

Name:<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n\n

Title:<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT F<\/u><\/p>\n

\n

Form of Secretary153s Certificate<\/p>\n

\n

The undersigned hereby certifies that he is the duly elected, qualified and
\nacting Secretary of Transgenomic, Inc., a Delaware corporation (the
\n“Company<\/em>“), and that as such he is authorized to execute and deliver
\nthis certificate in the name and on behalf of the Company and in connection with
\nthe Securities Purchase Agreement, dated as of February 2, 2012, by and among
\nthe Company and the investors party thereto (the “Securities Purchase
\nAgreement”<\/em>), and further certifies in his official capacity, in the name
\nand on behalf of the Company, the items set forth below. Capitalized terms used
\nbut not otherwise defined herein shall have the meaning set forth in the
\nSecurities Purchase Agreement.<\/p>\n<\/p>\n

(a) Attached hereto as Exhibit A is a true, correct and complete copy of the
\nresolutions duly adopted by the Board of Directors of the Company (the “Board”)
\nat a meeting of the Board held on [_____, ____] approving the transactions
\ncontemplated by the Securities Purchase Agreement and the other Transaction
\nDocuments and the issuance of the Securities. Such resolutions have not in any
\nway been amended, modified, revoked or rescinded, have been in full force and
\neffect since their adoption to and including the date hereof and are now in full
\nforce and effect.<\/p>\n<\/p>\n

(b) Attached hereto as Exhibit B is a true, correct and complete copy of the
\nCertificate of Incorporation of the Company, together with any and all
\namendments thereto currently in effect, and no action has been taken to further
\namend, modify or repeal such Certificate of Incorporation, the same being in
\nfull force and effect in the attached form as of the date hereof.<\/p>\n<\/p>\n

(c) Attached hereto as Exhibit C is a true, correct and complete copy of the
\nBylaws of the Company and any and all amendments thereto currently in effect,
\nand no action has been taken to further amend, modify or repeal such Bylaws, the
\nsame being in full force and effect in the attached form as of the date hereof.\n<\/p>\n<\/p>\n

(d) Each person listed below has been duly elected or appointed to the
\nposition(s) indicated opposite his name and is duly authorized to sign the
\nSecurities Purchase Agreement and each of the Transaction Documents on behalf of
\nthe Company, and the signature appearing opposite such person153s name below is
\nsuch person153s genuine signature.<\/p>\n<\/p>\n\n\n\n\n\n\n\n
\n

Name<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Position<\/strong><\/p>\n<\/td>\n

<\/td>\n\n

Signature<\/strong><\/p>\n<\/td>\n<\/tr>\n

<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

[________]<\/p>\n<\/td>\n

<\/td>\n\n

Chief Executive Officer<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/td>\n<\/tr>\n
\n

[________]<\/p>\n<\/td>\n

<\/td>\n\n

Chief Financial Officer<\/p>\n<\/td>\n

<\/td>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of this ____
\nday of ______________, 2012.<\/p>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

[Name]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Secretary<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

I, [Name], Chief Financial Officer, hereby certify that [Name] is the duly
\nelected, qualified and acting Secretary of the Company and that the signature
\nset forth above is his true signature.<\/p>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

[Name]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Chief Financial Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT A<\/strong><\/p>\n

\n

Resolutions<\/strong><\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT B<\/strong><\/p>\n

\n

Certificate of Incorporation<\/strong><\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT C<\/strong><\/p>\n

\n

Bylaws<\/strong><\/p>\n

\n\n\n\n\n
<\/td>\n<\/tr>\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

EXHIBIT G<\/u><\/p>\n

\n

Form of Officer153s Certificate<\/p>\n

\n

The undersigned, the Chief Executive Officer of Transgenomic, Inc., a
\nDelaware corporation (the “Company<\/em>“), pursuant to Section 5.1(h) of the
\nSecurities Purchase Agreement, dated as of February 2, 2012, by and among the
\nCompany and the investors signatory thereto (the “Securities Purchase
\nAgreement<\/em>“), hereby represents, warrants and certifies as follows
\n(capitalized terms used but not otherwise defined herein shall have the meaning
\nset forth in the Securities Purchase Agreement):<\/p>\n<\/p>\n\n\n\n
<\/td>\n\n

1.<\/p>\n<\/td>\n

\n

The representations and warranties of the Company contained in the Securities
\nPurchase Agreement are true and correct in all material respects (except for
\nthose representations and warranties which are qualified as to materiality, in
\nwhich case, such representations and warranties shall be true and correct in all
\nrespects) as of the date when made and as of the date hereof, as though made on
\nand as of such date, except for such representations and warranties that speak
\nas of a specific date.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n\n

2.<\/p>\n<\/td>\n

\n

The Company has performed, satisfied and complied in all material respects
\nwith all covenants, agreements and conditions required by the Transaction
\nDocuments to be performed, satisfied or complied with by it at or prior to the
\ndate hereof.<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n

IN WITNESS WHEREOF<\/strong>, the undersigned has executed this
\ncertificate this ___ day of ___________, 2012<\/p>\n<\/p>\n\n\n\n\n\n
<\/td>\n<\/td>\n<\/tr>\n
<\/td>\n\n

[Name]<\/p>\n<\/td>\n<\/tr>\n

<\/td>\n\n

Chief Executive Officer<\/p>\n<\/td>\n<\/tr>\n<\/tbody>\n<\/table>\n<\/p>\n\n\n\n
<\/td>\n<\/tr>\n<\/tbody>\n<\/table><\/p>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[9096],"corporate_contracts_industries":[9514],"corporate_contracts_types":[9622,9627],"class_list":["post-43582","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-transgenomic-inc","corporate_contracts_industries-technology__test","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\/43582","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=43582"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43582"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43582"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43582"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}