Sale Purchase Delivery and Payment for the Shares. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of
$1.87 $0.93 per share (the "Initial Price"), the number of Firm Shares set forth opposite the name of such Underwriter under the column "Number of Firm Shares to be
Purchased" ...Purchased from the Company" on Schedule I to this Agreement, subject to adjustment in accordance with Section 8 9 hereof. (b) The Company hereby grants to the several Underwriters an option to purchase, severally and not jointly, all or any part of the Option Shares at the Initial Price. The number of Option Shares to be purchased by each Underwriter shall be the same percentage (adjusted by the Representative Representatives to eliminate fractions) of the total number of Option Shares to be purchased by the Underwriters as such Underwriter is purchasing of the Firm Shares. Such option may be exercised only to cover over-allotments in the sales of the Firm Shares by the Underwriters and may be exercised in whole or in part at any time on or before 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date (as defined below), and from time to time thereafter within 30 days after the date of this Agreement, in each case upon written, facsimile or telegraphic notice, or verbal or telephonic notice confirmed by written, facsimile or telegraphic notice, by the Representative Representatives to the Company no later than 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date or at least two one business days day before the Option Shares Closing Date (as defined below), as the case may be, setting forth the number of Option Shares to be purchased and the time and date (if other than the Firm Shares Closing Date) of such purchase. 2 (c) Payment of the purchase price for, and delivery of certificates for, of, the Firm Shares shall be made at the offices of Oppenheimer H.C. Wainwright & Co. Inc., 85 Broad Street, Co., LLC, 430 Park Avenue, New York, New York 10004, 10022, at 10:00 a.m., New York City time, on the third second (or if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the Exchange Act (as defined below), after 4:30 p.m. Eastern time, the third) business day following the date of this Agreement or at such time on such other date, not later than ten (10) business days after the date of this Agreement, as shall be agreed upon by the Company and the Representative (such time and date of delivery and payment are called the "Firm Shares Closing Date"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price, and delivery of the certificates, for such Option Shares shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representative Representatives and the Company, on each date of delivery as specified in the notice from the Representative Representatives to the Company (such time and date of delivery and payment are called the "Option Shares Closing Date"). The Firm Shares Closing Date and any Option Shares Closing Date are called, individually, a "Closing Date" and, together, the "Closing Dates." -2- (d) Payment shall be made to the Company by wire transfer of immediately available funds or by certified or official bank check or checks payable in New York Clearing House (same day) funds drawn to the order of the Company, against delivery of the respective certificates Firm Shares and Option Shares, if any, to the account of the Representative for the respective accounts of the Underwriters of certificates for the Firm Shares and Option Shares, if any, to be purchased by them. (e) Certificates evidencing the The Firm Shares shall be registered in such names and shall be in such denominations as the Representative shall request at least two full business days before the Firm Shares Closing Date or, in the case of Option Shares, on the day of notice of exercise of the option as described in Section 1(b) and shall be delivered by or on behalf of the Company to the Representative through the facilities of the Depository Trust Company ("DTC") for the account of such Underwriter. The Company will cause the certificates representing the Shares to be made available for checking and packaging, at such place as is designated by the Representative, on the full business day before (e) On the Firm Shares Closing Date (or and on each Option Shares Closing Date, if any, the Company agrees to issue to H.C. Wainwright & Co., LLC or its designees (for their own account and not as the Representative of the several Underwriters), warrants (the "Warrants") to purchase a number of shares of Common Stock (the "Warrant Shares") equal to 4.0% of the number of Firm Shares or Option Shares, as applicable, with an exercise price per Warrant Share equal to $1.25. The Warrants will be exercisable at any time and from time to time on or after the the Firm Shares Closing Date or the Option Shares Closing Date in Date, as applicable, up to the case fifth anniversary of the Option Shares). date hereof.
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Sale Purchase Delivery and Payment for the Shares. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of
$1.87 $3.4875 per share (the "Initial Price"), the number of
Firm Shares set forth opposite the name of such Underwriter under the column "Number of
Firm Shares to be Purchased
..." on Schedule I to this Agreement, subject to adjustment in accordance with Section 8 hereof. (b) The Company hereby grants to For clarity and as set forth in the several Underwriters an option to purchase, severally and not jointly, all or any part of the Option Shares at Prospectus, the Initial Price. The number Price reflects a public offering price of Option Shares $3.75 per share, net of an underwriting discount equal to be purchased by each Underwriter shall be the same percentage (adjusted by the Representative to eliminate fractions) of the total number of Option Shares to be purchased by the Underwriters as such Underwriter is purchasing of the Firm Shares. Such option may be exercised only to cover over-allotments in the sales of the Firm Shares by the Underwriters and may be exercised in whole $0.2625, or in part at any time on or before 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date (as defined below), and from time to time thereafter within 30 days after the date of this Agreement, in each case upon written, facsimile or telegraphic notice, or verbal or telephonic notice confirmed by written, facsimile or telegraphic notice, by the Representative to the Company no later than 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date or at least two business days before the Option Shares Closing Date (as defined below), as the case may be, setting forth the number of Option Shares to be purchased and the time and date (if other than the Firm Shares Closing Date) 7% of such purchase. 2 (c) public offering price. (b) Payment of the purchase price for, and delivery of certificates for, the Firm Shares shall be made at the offices of Oppenheimer & Co. Inc., 85 Broad Street, New York, New York 10004, at 10:00 a.m., New York City time, on the third second business day following the date of this Agreement or at such time on such other date, not later than ten (10) business days after the date of this Agreement, as shall be agreed upon by the Company and the Representative (such time and date of delivery and payment are called the "Firm Shares Closing "Closing Date"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price, and delivery of the certificates, for such Option Shares shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representative and the Company, on each date of delivery as specified in the notice from the Representative to the Company (such time and date of delivery and payment are called the "Option Shares Closing Date"). The Firm Shares Closing Date and any Option Shares Closing Date are called, individually, a "Closing Date" and, together, the "Closing Dates." (d) 2 (c) Payment shall be made to the Company by wire transfer of immediately available funds or by certified or official bank check or checks payable in New York Clearing House (same day) funds drawn to the order of the Company, Company against delivery of the respective certificates to the Representative Shares for the respective accounts of the Underwriters of certificates for the Shares to be purchased by them. (e) Certificates evidencing the Underwriters. (d) The Shares shall be registered in such names and shall be in such denominations as the Representative shall request at least two full business days before the Firm Shares Closing Date or, in the case of Option Shares, on the day of notice of exercise of the option as described in Section 1(b) and shall be delivered by or on behalf of the Company to the Representative through the facilities of the Depository Trust Company ("DTC") for the account of such Underwriter. The Company will cause the certificates representing the Shares to be made available for checking and packaging, at such place as is designated by the Representative, on the full business day before the Firm Shares Closing Date (or the Option Shares Closing Date in the case of the Option Shares). Underwriters.
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Sale Purchase Delivery and Payment for the Shares. On the basis of the representations, warranties and agreements contained in, and subject to the terms and conditions of, this Agreement: (a) The Company agrees to issue and sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase from the Company, at a purchase price of
$1.87 $2.883 per share (the "Initial Price"), the number of Firm Shares set forth opposite the name of such Underwriter under the column "Number of Firm Shares to be
Purchased"...telegraphic e-mail notice, or verbal or telephonic notice confirmed by written, facsimile or telegraphic e-mail notice, by the Representative to the Company no later than 12:00 noon, New York City time, on the business day before the Firm Shares Closing Date or at least two business days before the Option Shares Closing Date (as defined below), as the case may be, setting forth the number of Option Shares to be purchased and the time and date (if other than the Firm Shares Closing Date) of such purchase. 2 (c) Payment of the purchase price for, and delivery of certificates for, the Firm Shares shall be made at the offices of Oppenheimer H.C. Wainwright & Co. Inc., 85 Broad Street, Co., LLC, 430 Park Avenue, 4th Floor, New York, New York 10004, NY 10022, at 10:00 a.m., New York City time, on the third second (or, if the Firm Shares are priced, as contemplated by Rule 15c6-1(c) under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), after 4:30 p.m. Eastern time, the third) business day following the date of this Agreement or at such time on such other date, not later than ten (10) business days after the date of this Agreement, as shall be agreed upon by the Company and the Representative (such time and date of delivery and payment are called the "Firm Shares Closing Date"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price, and delivery of the certificates, for such Option Shares shall be made at the above-mentioned offices, or at such other place as shall be agreed upon by the Representative and the Company, on each date of delivery as specified in the notice from the Representative to the Company (such time and date of delivery and payment are called the "Option Shares Closing Date"). The Firm Shares Closing Date and any Option Shares Closing Date are called, individually, a "Closing Date" and, together, the "Closing Dates." (d) Payment for the Shares shall be made to the Company by wire transfer of immediately available funds or by certified or official bank check or checks payable in New York Clearing House (same day) funds drawn to the order of the Company, against delivery of the respective certificates Firm Shares and Options Shares, if any, to the account of the Representative for the respective accounts of the Underwriters of certificates for the Firm Shares and Option Shares, if any, to be purchased by them. (e) Certificates evidencing the The Shares shall be registered in such names and shall be in such denominations as the Representative shall request request, in the case of the Firm Shares, at least two full business days before the Firm Shares Closing Date or, in the case of Option Shares, on the day of notice of exercise of the option as described in Section 1(b) and shall be delivered in book-entry form by or on behalf of the Company to the Representative through the facilities of the Depository Trust Company ("DTC") for the account respective accounts of such Underwriter. the Underwriters. 3 (f) The Company will cause shall issue to the certificates representing Representative or its designees on each Closing Date warrants (the "Underwriter Warrants") to purchase that number of shares of Common Stock equal to 6% of the Shares aggregate number of shares of Common Stock issued on such Closing Date. The Underwriter Warrants shall be in a customary form reasonably acceptable to the Underwriter and the Company, shall be made available for checking exercisable, in whole or in part, immediately and packaging, at such place as is designated by the Representative, expire on the full business day before the Firm Shares Closing Date (or the Option Shares Closing Date in the case five-year anniversary of the Option Shares). date of the Prospectus at an initial exercise price per share of Common Stock of $3.875, which is equal to 125% of the public offering price of the Shares.
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