PLACEMENT AGENCY AGREEMENT

(a)            The Memorandum will be and, as of each Closing Date, has been prepared by Company, at its sole cost, in conformity with all applicable laws and regulations, including, without limitation, Regulation D, the Act and the requirements of all other rules and regulations (the “Regulations”) of the SEC relating to offerings of the type contemplated by the Offering, and the applicable securities laws and the rules and regulations of those jurisdictions wherein the Securities are to be offered and sold, excluding foreign jurisdictions. Assuming Brookline’s obligations under Sections 1 and 3 of this Agreement and the accuracy of investor representations and warranties set forth in the Offering Documents, the Securities will be offered and sold pursuant to the registration exemption provided by Rule 506(b) of Regulation D and Section 4(a)(2) and/or Section 4(a)(6) of the Act as a transaction not involving a public offering in those jurisdictions mutually agreed by Brookline and Company. Company has not taken nor will it take any action that conflicts with the conditions and requirements of, or that would make unavailable with respect to the Offering or the exemption(s) from registration available pursuant to Rule 506 of Regulation D, Section 4(a)(2) or Section 4(a)(6) of the Act, and knows of no reason why any such exemption would be otherwise unavailable to it. None of Company’s affiliates have been subject to any order, judgment or decree of any court or governmental authority of competent jurisdiction temporarily, preliminarily or permanently enjoining such person for failing to comply with Rule 503 of Regulation D.

(b)            The Offering Documents will not and, as of each Closing Date, do not include any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which the Offering Documents were made, not misleading. None of the statements, documents, certificates or other items prepared or supplied (or to be prepared or supplied) by Company with respect to the transactions contemplated hereby contains an untrue statement of a material fact or omits a material fact necessary to make the statements contained therein not misleading. There is no fact that Company will not disclose, and, as of each Closing Date, has not disclosed, in the Memorandum and of which Company is aware that materially and adversely affects or could reasonably be expected to materially and adversely affect the business prospects, financial condition, operations or assets of Company, except as otherwise disclosed in the reports, schedules, forms, statements and other documents filed by Company under the 1934 Act, including the exhibits thereto and documents incorporated by reference therein (collectively, the “SEC Reports”).

(c)            Company is a corporation duly organized, validly existing and in good standing under the laws of the State of Nevada. Company has no subsidiaries and does not have an equity interest in any other firm, partnership, limited liability company, corporation, association or other entity.  Company is duly qualified to transact business as a foreign corporation and is in good standing under the laws of each jurisdiction where the location of its properties or the conduct of its business makes such qualification necessary, except where the failure to be so qualified would not have a material adverse effect on the business, condition (financial or otherwise), operations or property of Company (a “Material Adverse Effect”).

(d)            Company has all requisite power and authority (corporate and other) to conduct its business as presently conducted and as proposed to be conducted  and to enter into and perform its obligations under this Agreement.  Prior to any Closing (as defined below), Company has all requisite power and authority (corporate and other) to enter into and perform its obligations under the Offering Documents and to issue, sell and deliver the Securities. This Agreement has been duly executed and delivered and constitutes, and each of the Offering Documents, if applicable, upon due execution and delivery, will constitute, valid and binding obligations of Company, enforceable against Company in accordance with their respective terms: (i) except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other similar laws now or hereafter in effect relating to or affecting creditors’ rights generally, including the effect of statutory and other laws regarding fraudulent conveyances and preferential transfers, and except that no representation or warranty is made herein regarding the enforceability of Company’s obligations to provide indemnification and contribution remedies under the securities laws and (ii) subject to the limitations imposed by general equitable principles (regardless of whether such enforceability is considered in a proceeding at law or in equity).

(e)            None of the execution and delivery of, or performance by Company of this Agreement or the consummation of the transactions herein contemplated conflicts with or violates, or will result in the creation or imposition of any lien, charge or other encumbrance upon any of the assets of Company under any agreement or other instrument to which Company is a party or by which Company or its assets may be bound, any term of the articles of incorporation, bylaws and other governance documents of Company or any license, permit, judgment, decree, order, statute, rule or regulation applicable to Company or any of its assets.

(f)            Company’s outstanding equity has been duly authorized and issued. No person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transactions contemplated by the Offering Documents that has not been effectively waived. Company’s common stock conforms to all statements in relation thereto contained in the SEC Reports and the SEC Reports describes all material terms and conditions thereof. No consent, authorization or filing of or with any court or governmental authority is required on the part of Company in connection with the issuance of the Securities or the consummation of the transactions contemplated herein or in the Offering Documents, except for required filings with the SEC and applicable “Blue Sky” or state securities commissions relating specifically to the Offering (all of which will be duly made on a timely basis by Company or Company’s counsel).

(g)            Company has no material liabilities of any kind (whether accrued, absolute, contingent or otherwise), nor has Company entered into any material transactions or commitments, that are required to be reflected as liabilities in the most recent balance sheet set forth in the financial statements of Company included in the SEC Reports other than liabilities incurred after the date of such balance sheet in the ordinary course of business.  The financial statements of Company included in the SEC Reports fairly present in all material respects the financial position of Company as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal year-end audit adjustments.

(h)            Company has obtained all requisite licenses, permits and other governmental authorization necessary to conduct its business as presently, and as proposed to be, conducted, where a failure to obtain such license, permit or authorization would not have a Material Adverse Effect.

(i)            No default by Company or, to the knowledge of Company, any other party exists in the due performance under any material agreement to which Company is a party or to which any of its assets is subject (collectively, the “Company Agreements”).

(j)            There are no actions, proceedings, claims or investigations before or by any court or governmental authority pending or, to the knowledge of Company, threatened, against Company, or involving Company’s assets or, to the knowledge of Company, involving any of its officers or directors which, if determined adversely to Company or such officer or director, could have a Material Adverse Effect or materially and adversely affect the transactions contemplated by this Agreement or the Offering Documents or the enforceability thereof.

(k)            Company is not in violation of: (i) its articles or certificate of incorporation, bylaws or other governance documents, as applicable and as may be amended, restated and supplemented from time to time to date; (ii) any indenture, mortgage, deed of trust, note or other agreement or instrument to which Company is a party or by which it is or may be bound or to which any of its assets may be subject; (iii) any statute, rule or regulation currently applicable to Company; or (iv) any judgment, decree or order applicable to Company; which any such violation or violations individually, or in the aggregate, would result in a Material Adverse Effect.

(l)            To the knowledge of Company, Company owns all right, title and interest in, or possesses adequate and enforceable rights to use, all registered and unregistered (including pending applications) copyrights, patents, trademarks, trade names, service marks, copyrights, rights, licenses, franchises, trade secrets, confidential information, processes, formulations, software and source and object codes that are used by Company in the operation of Company’s business (collectively, the “Intangibles”). To the knowledge of Company, (i) Company has not infringed upon the rights of others with respect to the Intangibles, (ii) Company has received no notice that it has or may have infringed or is infringing upon the rights of others with respect to the Intangibles, and (iii) Company otherwise has received no notice of conflict with the asserted rights of others with respect to the Intangibles that would result in a Material Adverse Effect.

(m)            Company has filed each federal, state, local and foreign tax return that is required to be filed by it or has requested an extension therefor, and Company has paid all taxes and all related assessments, penalties and interest to the extent that the same have become due and payable, except for any such assessment, fine or penalty that is currently being contested in good faith or except where the failure to file such return or pay such taxes, assessments, penalties or interest would not result in a Material Adverse Effect.

(n)            No person or entity will have, as a result of the offer and sale of Securities in the Offering, any valid claim against or upon Brookline for any commission, fee or other compensation pursuant to any agreement, arrangement or understanding entered into by Company.  Company agrees to indemnify Brookline from any such claim made by any other person or entity.

(o)            Neither the sale of the Securities by Company nor its use of the proceeds thereof will violate the Trading with the Enemy Act, as amended, nor any of the foreign assets control regulations of the United States Treasury Department (31 C.F.R., Subtitle B, Chapter V, as amended) or any enabling legislation or executive order relating thereto.  Without limiting the foregoing, Company is not (a) a person whose property or interests in property are blocked pursuant to Section 1 of Executive Order 13224 of September 23, 2001 Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism (66 Fed. Reg. 49079 (2001)) or (b) a person who engages in any dealings or transactions, or be otherwise associated, with any such person.  Company and its subsidiaries, if any, are in compliance, in all material respects, with the USA Patriot Act of 2001 (signed into law October 26, 2001).

(p)            None of Company or any of its predecessors, affiliated issuers, directors, executive officers, or other officers participating in the Offering, nor any beneficial owner of 20% or more of Company’s outstanding voting equity securities, calculated on the basis of voting power, nor any promoter (as that term is defined in Rule 405 under the Act) connected with Company in any capacity at the time of any sale of Securities (each, a “Company Covered Person”), is subject to any of the “Bad Actor” disqualifications described in Rule 506(d)(1)(i) to (viii) of the Act (each, a “Disqualification Event”), except for a Disqualification Event covered by Rule 506(d)(2) or (d)(3); and Company has exercised reasonable care to determine whether any Company Covered Person is subject to a Disqualification Event.

(a)            Company hereby appoints Brookline as its exclusive placement agent in connection with the Offering. Company acknowledges and agrees that Brookline may use selected dealers and sub-agents to fulfill its agency hereunder provided that such dealers and sub-agents are compensated solely by Brookline. Brookline shall notify Company of any selected dealer or sub-agent that Brookline utilizes to fulfill its agency hereunder. The agency of Brookline and its appointment as placement agent hereunder shall continue until the Termination Date.

(b)            Company will cause to be delivered to Brookline copies of the Offering Documents and Company hereby consents to Brookline’s use of such copies for the purposes permitted by the Act and applicable securities laws in connection with the Offering.  Company hereby authorizes Brookline and its employees, agents and selected dealers, if any, to use the Memorandum and Offering Documents in connection with the offer and sale of the Securities until the earlier to occur of (i) the Termination Date, (ii) the final Closing in relation to the Offering, or (iii) the date Company instructs Brookline in writing to no longer use the Memorandum, and no other person or entity is or will be authorized to give any information or make any representations other than those contained in the Memorandum or to use any offering materials other than those constituting part of the Memorandum in connection with the offer and sale of the Securities. Company shall provide Brookline at Company’s own expense such quantities of the Offering Documents as Brookline may reasonably request.

(c)            Company will cooperate with Brookline by making available to Brookline’s representatives such information as may be reasonably requested in making a reasonable investigation of Company and its affairs and shall provide access during regular business hours to such employees of Company as Brookline may reasonably request.

(d)            With the exception of those found on Exhibit A attached hereto to which a reduced cash fee will be due Brookline, out of the proceeds received at each Closing and as a condition to each Closing, Company shall pay to Brookline a cash placement fee (the “Placement Agent’s Fee”) equal to 7% of the aggregate purchase price paid by purchasers of Securities issued at the Closing. The Placement Agent’s Fee will be deducted from the gross proceeds of the Securities sold at the Closing and paid at the time of Closing.  Brookline will receive a cash payment equal to 2% of the aggregate purchase price paid by purchasers of Securities issued at the Closing to Exhibit A investors.

(e)            With the exception of those found on Exhibit A attached hereto to which a reduced equity fee will be due Brookline, as additional compensation, Company shall issue to Brookline or its designees warrants (the “Agent’s Warrants”) to purchase an aggregate number of shares of Company’s common stock equal to 7% of the aggregate number of shares of Securities sold in the Offering to purchasers of Securities. The Agent’s Warrants will be on the same terms as those warrants issued to the purchasers of Securities.  Company shall issue to Brookline or its designees Agents Warrants to purchase an aggregate number of shares of Company’s common stock equal to 2% of the aggregate number of shares of Securities sold in the Offering to purchasers of Securities listed on Exhibit A.

(f)            Payment to Brookline of any Placement Agent’s Fee and Agent’s Warrants is due at and as a condition to any Closing, unless this condition is waived, in full or in part, by Brookline in its sole discretion, in which case such payment shall be due promptly (and in no event more than three business days) following the time that Brookline requests such payment in the future. To the extent there is more than one Closing, payment of the proportional amount of any Placement Agent’s Fee and Agent Warrants will be made out of the proceeds of subscriptions for the Securities sold at each Closing unless otherwise agreed by Brookline and Company.

(g)            With the exception of those found on Exhibit A attached hereto to which no Tail Placement Agent’s Fees shall be due to Brookline, Brookline will be entitled to, and Company shall pay to Brookline, tail placement agent’s fees (the “Tail Placement Agent’s Fees”) equal to 7% of the aggregate purchase price of any equity securities of Company or any affiliate or successor of Company or securities that are by their terms convertible into equity securities of Company or any affiliate or successor of Company (“New Securities”) issued in any subsequent offering (each, a “Subsequent Offering”) consummated during the 12-month period following the Termination Date (the “Tail Period”) (I) to purchasers of Securities issued in this Offering and (II) to persons and entities, including, without limitation, individuals, trusts, corporations, limited liability companies, and partnerships, that were placed by Brookline as further defined below (collectively, the “Brookline Investors”). Notwithstanding the foregoing, a Subsequent Offering will not include:(A) the issuance of shares of common stock or any securities convertible into shares of common stock, upon the exercise or conversion of common stock equivalents (i.e., options, warrants, etc.) that are outstanding as of the date of this Agreement; (B) the grant or issuance of shares of common stock, options, warrants or other equity awards to employees, officers, directors, consultants or advisors of Company pursuant to plans or agreements approved by Company’s Board of Directors or a duly authorized committee of Company’s Board of Directors, and the issuance of shares of common stock in respect thereof; (C) the issuance of New Securities as consideration for mergers, acquisitions or other business combinations; or (D) the issuance of New Securities in connection with sponsored research, collaboration, technology license, development, OEM, distribution, marketing, services or other similar agreements or strategic partnerships approved by a majority of the disinterested members of Company’s Board of Directors. For purposes of this Agreement, “placed by Brookline” means (x) all investors with regard to which Brookline is entitled to receive the Placement Agent’s Fee, and (y) all other persons and entities, including, without limitation, individuals, trusts, corporations, limited liability companies, and partnerships, who by or at the suggestion or direction of Brookline or Company, during the period of time from the date of this Agreement until the Termination Date: (1) met with Company or had a conversation with Company either in person or by telephone or other means of communication regarding the Offering; or (2) were provided a copy of the Memorandum based upon expressing an interest in the Offering. Brookline will provide Company with a list of the persons described in Section 4(g)(y) above within 30 days following the termination of this Agreement.

(h)            With the exception of those found on Exhibit A attached hereto to which no Tail Agent’s Warrants shall be due to Brookline, as additional compensation, Company shall issue warrants (the “Tail Agent’s Warrants”) to Brookline or its designees to purchase an aggregate number of shares of common stock of Company (or other equity securities of Company mutually agreeable to the parties) equal to 7% of the aggregate number of shares of New Securities sold in a Subsequent Offering (or, if applicable, equity securities into which such New Securities would convert upon at the elective or any similar type of conversion price set forth in such New Securities) to Brookline Investors during the Tail Period. The Tail Agent’s Warrants issued to Brookline will have an exercise price equal to the greater of: (i) a 10% premium to the per share purchase price or (ii) the exercise price of warrants issued in such offering. Such warrants shall be exercisable immediately after the date of issuance. Further, the Tail Agent’s Warrants will expire 5 years after the date of issuance, be freely transferable subject to applicable laws, and include cashless exercise,  and other customary provisions reasonably acceptable to the parties. Company will have no right to redeem the Tail Agent’s Warrants. The Tail Agent’s Warrants will not have demand, piggy-back or other registration rights.

(i)             In connection with Brookline executing this Agreement and agreeing to act as placement agent in connection with the proposed Offering, Company hereby grants Brookline a right of first offer to negotiate with the Company regarding whether, and on what terms, Brookline would act at least as Company’s joint bookrunner or co-placement agent with respect to any public or private offering by Company of its equity or debt securities or a co-advisor on a sale of the Company (a “Subject Transaction”) within the period beginning on the date of this Agreement and ending 12-months following the termination of this Agreement. Any such engagement shall be upon terms and for fees that are mutually acceptable to the Company and Brookline. If the parties do not reach agreement on such terms and fees within five (5) days after the Company delivers written notice of the Company’s intention to pursue Subject Transaction, then the Company may engage such other person or firm, on such terms and for such compensation, as are acceptable to the Company in its sole discretion and thereafter Brookline shall not have any further rights under this Section 4(i).

(a)            Each prospective investor will be required to complete and execute signature pages to the Offering Documents, which will be forwarded or delivered to Brookline at the offices of Brookline at the address set forth in Section 14 hereof setting forth the amount of Securities desired to be purchased. The funds in the full amount of the purchase price for the Securities desired to be purchased will be transmitted by wire transfer directly to the Escrow Agent (as defined below).

(b)            All funds for subscriptions to purchase Securities from prospective investors will be transmitted directly by such prospective investor to the Escrow Agent and deposited in a non-interest bearing escrow account (the “Escrow Account”) established for such purpose with ServisFirst Bank or another agent mutually acceptable to the parties (the “Escrow Agent”). All such funds for subscriptions will be held in the Escrow Account pursuant to the terms of an escrow agreement between Company, Brookline and the Escrow Agent, which will be in form and substance reasonably satisfactory to the parties thereto. Company will pay all fees related to the establishment and maintenance of the Escrow Account, regardless of whether a Closing occurs. Company shall have the sole right to accept or reject subscriptions for the purchase of Securities, and Brookline shall have no power or authority to bind Company. Company shall provide Brookline copies of executed Offering Documents with respect to the purchase of Securities by prospective investors. Notwithstanding any provision of this Agreement to the contrary, Company shall be under no obligation to consummate the Offering.

(c)            If subscriptions from prospective investors have been accepted prior to the Termination Date, the funds therefor have been collected by the Escrow Agent and all of the conditions set forth elsewhere in this Agreement and in the Offering Documents have been fulfilled (other than such conditions as are required to be fulfilled at Closing), a closing on the prospective investors’ subscriptions (the “Closing”) shall occur on such date as is mutually agreed by Company and Brookline (such date, the “Closing Date”). The Escrow Agent shall follow the written instructions submitted by Company and Brookline and disburse the funds simultaneously to the payees by wire transfer at the time of Closing. Delivery of payment for the accepted prospective investors’ subscriptions from the funds held in the Escrow Account will be made by wire transfer from the Escrow Agent to Company at Closing against delivery by Company of the Securities, which wire transfer shall be net of amounts due to Brookline, Brookline’s counsel, if Brookline so directs, and Company’s counsel, if Company so directs, and the Escrow Agent, if any.

(d)            If all of the conditions set forth in the Memorandum have not been fulfilled on or before the Termination Date for any reason (other than such conditions as are required to be fulfilled at Closing), the Offering will be terminated, no Securities will be sold, and the Escrow Agent will, at the request of Brookline, cause all monies received from prospective investors that subscribed for the Securities to be promptly returned to such investors without interest or offset.

(e)            The conditions set forth in the Memorandum that must be satisfied (or otherwise waived) for a Closing to occur must be reasonably satisfactory to Brookline.

6.            Further Covenants. Company hereby covenants and agrees that:

(a)            If, at any time prior to the Closing, any event shall occur as a result of which, in the reasonable judgment of Company or Brookline (or counsel thereto), (i) the Offering Documents would include any untrue statement of material fact or omit to state a material fact necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or (ii) it would be necessary to amend or supplement the Offering Documents so that the representations and warranties herein remain true in all material respects or to comply with Regulation D or any other applicable securities laws or regulations, Company or Brookline, as applicable, will promptly notify the other party and Company shall, at its sole cost, prepare and furnish to Brookline copies of appropriate amendments and/or supplements in such quantities as Brookline may reasonably request. Company will not at any time, whether before or after the Closing, prepare or use any amendment or supplement to the Offering Documents of which Brookline will not previously have been advised and furnished with a copy, or to which Brookline or its counsel will have reasonably objected in writing or orally (confirmed in writing within 24 hours), or which is not in compliance in all material respects with the Act, the Regulations and other applicable securities laws, rules and regulations.  As soon as Company is advised thereof, Company will advise Brookline and its counsel, and confirm the advice in writing, of any order preventing or suspending the use of the Offering Documents, or the suspension of the qualification or registration of the Securities or shares of common stock of Company underlying the Securities for offering or the suspension of any exemption for such qualification or registration of the Securities underlying the Securities for offering in any jurisdiction, or of the institution or threatened institution of any proceedings for any of such purposes, and Company will use its commercially reasonable efforts to prevent the issuance of any such order, judgment or decree and, if issued, to endeavor to obtain as soon as reasonably possible the lifting thereof.

(b)            Company shall comply with the Act, the Regulations, the 1934 Act, and the rules and regulations thereunder, all applicable federal, state and foreign securities laws and the rules and regulations thereunder in the states in which the Securities are to be offered and in which Company’s counsel has advised Brookline that the Securities are qualified or registered for sale or exempt from such qualification or registration, so as to permit the continuance of the sales of the Securities, and will file with the SEC, and shall promptly thereafter forward to Brookline, any and all reports on Form D and other securities filings as are required.  Company shall take all reasonable steps to assist Brookline in complying with FINRA Rule 5123 and Regulation M, provided that compliance with FINRA Rule 5123 and Regulation M shall be Brookline’s responsibility.

(c)            Company shall use its reasonable best efforts to qualify the Securities for sale (or seek exemption therefrom) under the state securities or Blue Sky laws of such jurisdictions in the United States as may be mutually agreed to by Company and Brookline, and Company will (through its counsel) make such applications and furnish information as may be required for such purposes, provided that in no event shall Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to general service of process in any jurisdiction where it is not now subject, and provided further that Company shall not be required to produce any new disclosure document other than the Memorandum.  Company will, from time to time, prepare and file such statements and reports as are or may be required to continue such qualifications in effect for so long a period as Brookline may reasonably request.

(d)            To the extent required by applicable law or its governance documents, Company shall place a legend on the certificates representing the Securities issued to investors stating that the securities evidenced thereby have not been registered under the Act or applicable state securities laws and setting forth or referring to the applicable restrictions on transferability and sale of such securities under the Act and applicable state laws.

(e)            Company shall apply the net proceeds from the sale of the Securities for the purposes described in the Memorandum.

(f)            Whether or not the transactions contemplated hereby are consummated, or this Agreement is terminated, as partial consideration to Brookline for the performance of its services hereunder, Company hereby agrees to pay all reasonable fees, costs and expenses incident hereto and to the Offering, including, without limitation, those in connection with: (i) preparing, printing, duplicating, filing, distributing and binding the Memorandum and any and all amendments and/or supplements thereto and any and all agreements, contracts and other documents related hereto and thereto; (ii) the creation, authorization, issuance, transfer and delivery of the Securities, including, without limitation, fees and expenses of any transfer agent or registrar; (iii) all fees and expenses of legal, accounting and other advisers to Company; (iv) the registration, qualification or exemption  of the Securities for offer and sale under the securities or Blue Sky laws of such jurisdictions pursuant to Section 6(c); (v) the fees and expenses of the Escrow Agent; (vi) all reasonable travel, long-distance telephone call, photocopying, courier and related other out-of-pocket expenses incurred by Brookline in connection with this Agreement, including the reasonable fees and expenses of Brookline’s counsel, all of which fees, costs and expenses shall be reasonably documented by Brookline in an invoice submitted by Brookline to Company; provided, however, that in no event shall Company be obligated to pay any fees and expenses described in this clause (vi) in excess of $35,000 in the aggregate without Company’s written consent; provided, further, that the foregoing limitation on fees and expenses shall in no way affect the obligations of Company with respect to the indemnification provisions set forth in Section 9. All fees and expenses described in this clause (vi) shall be payable to Brookline by Company within 30 days after Company’s receipt of an invoice from Brookline from time to time for such for such fees and expenses.

(a)            Each of the representations and warranties of Company in this Agreement shall be true and correct in all material respects, other than representations and warranties that contain materiality or knowledge standards or qualifications (which representations and warranties shall be true and correct in all respects) on the date hereof and on and as of the Closing Date as though made on and as of the Closing Date.

(b)            Company shall have performed and complied in all material respects with all agreements, covenants and conditions required to be performed and complied with by Company under the Offering Documents at or before the Closing.

(c)            No order suspending the use of the Memorandum or enjoining the offering or sale of the Securities shall have been issued, and no proceedings for that purpose or a similar purpose shall have been initiated and pending, or, to Company’s knowledge, are contemplated or threatened.

(d)            The Chief Executive Officer of Company shall have duly executed and delivered a certificate to Brookline certifying on behalf of Company that: (i) there have been no undisclosed material and adverse changes in the business condition (financial or otherwise) of Company from the date of the latest financial statements included in the SEC Reports and (ii) the conditions set forth in subparagraphs (a), (b), (c) and (g) in this Section 7 have been fulfilled.

(e)            Company shall have paid all fees, costs and expenses due pursuant to this Agreement, including, without limitation, those set forth in Sections 4 and 6(f) of this Agreement.

(f)            All proceedings taken at or prior to the Closing in connection with the authorization, issuance and sale of the Securities will be reasonably satisfactory in form and substance to Brookline and its counsel, and such counsel shall have been furnished with all such documents, certificates and opinions as they may reasonably request upon reasonable prior notice in connection with the transactions contemplated hereby.

(g)            All shares of common stock of the Company which may be issued at or following the Closing upon exercise of any warrants and the Agent’s Warrants will be upon issuance, validly issued and fully-paid and non-assessable.

(h)            Brookline shall have completed, to Brookline’s reasonable satisfaction, its due diligence review of Company and Company shall have fulfilled such other conditions and requirements as Brookline may, in its sole discretion, reasonably request from time to time.

(a)            Company will: (i) indemnify and hold harmless Brookline, its selected dealers and each of Brookline’s and its selected dealers’ officers, directors, employees and each person, if any, who controls Brookline within the meaning of the Act (each an “Indemnitee”) against, and pay or reimburse each Indemnitee for, any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), joint or several (which will, for all purposes of this Agreement, include, but not be limited to, all reasonable costs of defense and investigation and all reasonable attorneys’ fees, including appeals), to which any Indemnitee may become subject, under the Act or otherwise, in connection with the offer and sale of the Securities; and (ii) reimburse each Indemnitee for any legal or other expenses reasonably incurred in connection with investigating or defending against any such loss, claim, action, proceeding or investigation; provided, however, that Company will not be liable in any such case to the extent that any such claim, damage or liability results from: (A) an untrue statement or alleged untrue statement of a material fact made in the Offering Documents, or an omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, in reliance upon and in conformity with written information furnished to Company by Brookline or any such controlling persons specifically for use in the preparation thereof; (B) any violations by Brookline of applicable law, including but not limited to the Act or state securities laws, which does not result from a violation thereof or a breach hereof by Company or any of its affiliates; or (C) any intentional misrepresentation by, or gross negligence, willful misconduct or bad faith of, Brookline.  In addition to the foregoing agreement to indemnify and reimburse, Company will indemnify and hold harmless each Indemnitee against any and all losses, claims, damages, liabilities or expenses whatsoever (or actions or proceedings or investigations in respect thereof), joint or several (which shall for all purposes of this Agreement, include, but not be limited to, all costs of defense and investigation and all reasonable attorneys’ fees, including appeals) to which any Indemnitee may become subject insofar as such costs, expenses, losses, claims, damages or liabilities arise out of or are based upon the claim of any person or entity that he or it is entitled to broker’s or finder’s fees from any Indemnitee in connection with the Offering as a result of arrangements made by Company.

(b)            Promptly after receipt by an Indemnitee under this Section 9 of notice of the commencement of any action, claim, proceeding or investigation (“Action”), such Indemnitee, if a claim in respect thereof is to be made against Company under this Section 9, will notify Company of the commencement thereof, but the omission to so notify Company will not relieve it from any liability which it may have to any Indemnitee under this Section 9 unless Company has been substantially prejudiced by such omission.  Company will be entitled to participate in, and, to the extent that Company may wish, jointly with any other indemnifying party, to assume the defense thereof subject to the provisions herein stated, with counsel reasonably satisfactory to such Indemnitee.  The Indemnitee will have the right to employ separate counsel in any such Action and to participate in the defense thereof, but the fees and expenses of such counsel will not be at the expense of Company if Company has assumed the defense of the Action with counsel reasonably satisfactory to the Indemnitee; provided, however, that if the Indemnitee shall be requested by Company to participate in the defense thereof or shall have concluded in good faith and specifically notified Company either that there may be specific defenses available to the Indemnitee which are different from or additional to those available to Company or that such Action involves or could have a material adverse effect upon the Indemnitee with respect to matters beyond the scope of the indemnity agreements contained in this Agreement, then the counsel representing the Indemnitee, to the extent made necessary by such defenses, shall have the right to direct such defenses of such Action on the Indemnitee’s behalf and in such case the reasonable fees and expenses of such counsel in connection with any such participation or defenses shall be paid by Company.  No settlement of any Action against an Indemnitee will be made without the consent of Company and the Indemnitee, which consent shall not be unreasonably withheld or delayed in light of all factors of importance to such party, and Company shall not be liable to indemnify any person for any settlement of any such claim effected without Company’s consent.