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3.9. Accuracy. To Seller's Knowledge, the required disclosures made in this Agreement and the schedules attached hereto are complete and accurate in all material respects, and the scheduled disclosures do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements or facts contained therein, in light of the circumstances under which they were made, not misleading.

3.10. Securities Act of 1933. The Shares purchased by Seller pursuant to this Agreement are being acquired for investment only and not with a view to any public distribution thereof, and Seller will not offer to sell or otherwise dispose of the Shares so acquired by it in violation of the Securities Act of 1933.

Purchaser represents and warrants to Seller as follows:

4.1. Organization. Purchaser is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization.

4.2. Authority. Purchaser has the full corporate power and authority to execute and deliver the Transaction Documents and to consummate the transactions contemplated hereby and thereby. All corporate acts and other proceedings required to be taken by or on the part of Purchaser to authorize such execution, delivery and consummation have been duly and properly taken. The Transaction Documents have been duly executed and delivered by Purchaser and constitute legal, valid and binding obligations of Purchaser enforceable against Purchaser in accordance with their respective terms. The execution and delivery by Purchaser of the Transaction Documents and the consummation of the transactions contemplated hereby and thereby will not violate any law, or conflict with, result in any breach of, constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the creation of an Encumbrance on any of the properties or assets of Purchaser pursuant to, the corporate charter or by-laws of Purchaser or any indenture, mortgage, lease, agreement or other instrument to which Purchaser is a party or by which its properties or assets are bound. No material approval, authorization, consent or other order or action of or filing with any person, entity or court, administrative agency or other governmental body in the United States of America is required for the execution and delivery by Purchaser of the Transaction Documents or the consummation by Purchaser of the transactions contemplated hereby or thereby. 4.3 Capital Stock of the Company. The authorized capital stock of the Company consists of (i) _________ shares of Common Stock, par value $ _________ per share (the "Common Stock"), and (ii) _________ shares of preferred stock, par value $ _________ per share, of which _________ have been designated as Series A Convertible Voting Preferred Stock (the "Series A Preferred Stock") and, after giving effect to the Certificate of Designations, _________ of which have been designated Series B Convertible Redeemable Preferred Stock (the "Series B Preferred Stock"). On the date hereof, 31,301,804 shares of Common Stock are outstanding, _________ shares of the Series A Preferred Stock are outstanding and $$$ shares of the Series B Preferred Stock will be outstanding pursuant to this Agreement. In addition, on the date hereof, there are outstanding 6,344,224, _________ and _________ Class A, Class B and Class C Warrants, respectively, to purchase Common Stock of the Company. All of the outstanding shares are duly authorized, validly issued and outstanding, fully paid and non-assessable. The Shares have not been and will not be issued in violation of, and are not subject to, any preemptive or subscription rights, other than such rights that have been waived by the holders thereof.

4.4. No Legal Proceedings. Except as disclosed in Schedule 4.4, there is no action, suit, investigation, order, judgment or proceeding pending or, to the knowledge of Purchaser, threatened against or affecting Purchaser that, individually or when aggregated with one or more other actions, suits, orders, judgments or proceedings, has or might reasonably be expected to have a material adverse effect on Purchaser's ability to perform any of its obligations hereunder or under any of the Transaction Documents.

4.5 Certificate of Designations. The Certificate of Designations has been duly filed with the Secretary of State of the State of Delaware. The certificate of incorporation of Purchaser has been duly amended by the filing of the Certificate of Designations.

4.6 Brokers. No broker, investment banker or other person is entitled to any broker's, finder's or similar fee or commission in connection with the transactions contemplated by this Agreement based upon arrangements made by or on behalf of Purchaser.

4.7 Accuracy. To Purchaser's knowledge, the required disclosures made in this Agreement and the schedules attached hereto are complete and accurate in all material respects, and the scheduled disclosures do not contain any untrue statement of a material fact or omit to state any material fact necessary to make the statements or facts contained therein, in light of the circumstances under which they were made, not misleading.

4.8 Registration Statement. Purchaser's draft S-1 registration statement dated _________,_________,_________(M/D/Y), a copy of which has been delivered to Seller, complies as to form in all material respects with the requirements of the Securities Act of 1933 and all applicable rules and regulations thereunder, and does not contain any false or misleading statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements made therein not misleading.

5.1. Security Arrangements. To secure Seller's obligations under Sections 2.3(d) and (f) hereof until the Purchase Price Reduction is paid in full or is finally determined to be zero, Seller shall (i) not dispose of its Shares of Series B Preferred Stock or (ii) retain the proceeds from the sale of such Shares in escrow pursuant to an escrow agreement acceptable to Purchaser.

5.2. Access; Information; Confidentiality.

(a) Each party, covenants and agrees, and shall cause each of its officers, employees, attorneys, accountants and other authorized representatives, to treat all information obtained or developed by them concerning the other party in strict confidence. Each party also covenants and agrees to comply with all other confidentiality undertakings heretofore agreed to between Purchaser and Seller or their representatives relating to the parties or the transactions contemplated by this Agreement.

(b) If at any time it is necessary that a party be furnished with additional information, documents or records relating to the Purchased Assets or the Business in order properly to prepare or support its tax returns or other documents or reports required to be filed with governmental authorities or any securities exchanges or otherwise for any purpose in connection with the performance or discharge by the parties of their obligations hereunder, and such information, documents or records are in the possession or control of the other party, such other party agrees to use all reasonable efforts to furnish or make available such information, documents or records (or copies thereof).

5.3. Financial Statements. Seller covenants and agrees to prepare and deliver the Post-Closing Financial Statements.

5.4. Fees and Expenses. Each party shall bear its own expenses incurred in connection with the transactions contemplated hereby, except that Purchaser shall reimburse Seller for up to $ _________ of Seller's reasonable fees and expenses incurred in connection with the transactions contemplated hereby and the preparation of the Post-Closing Financial Statements within 30 days after receipt of the Post-Closing Financial Statements.

5.5. Accounts Receivable. Seller agrees to promptly remit to Purchaser the amount of any payments received by Seller relating to Seller's Accounts Receivable.

5.6. Indemnification.

(a) Each of Seller and Purchaser shall indemnify and hold the other harmless against and in respect of all actions, suits, demands, judgments, costs and expenses (including reasonable attorneys' fees) (collectively, "Damages") relating to any misrepresentation, breach of any representation or warranty or non-fulfillment of any agreement on the part of such party in any Transaction Document.

(b) Purchaser shall indemnify and hold Seller harmless in respect of Damages relating to the Transferred Employees and the Business, in each case arising on or after the date hereof. Seller shall indemnify and hold Purchaser harmless in respect of Damages relating to the Transferred Employees and the Business, in each case arising prior to the date hereof.

(c) The indemnification provided for in this Section 5.6 shall terminate and be of no further force and effect one year from the date hereof, except as to any representation or warranty as to which a written notice of claim for indemnification has been given to the indemnifying party prior to the expiration of such one-year period. Neither party shall be liable pursuant to this Section for any amounts which in the aggregate exceed the Purchase Price.

5.7. Public Announcements. Unless otherwise required by law or the rules and regulations of the Securities and Exchange Commission, none of the parties shall issue any press release or make any public statement with respect to this Agreement and the transaction contemplated hereby except for the agreed upon press release to be issued by the parties on the date hereof.

5.8. Sales and Transfer Taxes. Seller shall pay all sales, use, excise and/or transfer taxes due with respect to the Business, provided that any property taxes relating to the Leased Premises shall be prorated between the parties based on their respective periods of occupancy during the applicable taxing period.

5.9. Noncompetition Agreement of Seller. For a period of five years following the date hereof, Seller shall not, directly or indirectly, as principal, investor, or in any similar capacity (i) engage in the Business anywhere in the world, (ii) own, manage, operate or control, or participate in the ownership, management, operation or control of, any business which directly or indirectly competes with the Business anywhere in the world, or (iii) with respect to the Business interfere with, disrupt or attempt to disrupt any present or prospective relationship, contractual or otherwise, between Purchaser and any of its licensors, licensees, clients, customers, suppliers, employees or other related parties, or employ, solicit or induce for hire any Transferred Employee, or any of the employees, agents, consultants or advisors of Purchaser or any employee who has left the employment of Purchaser within six months of the termination of said employee's employment with Purchaser, provided that nothing herein shall preclude Seller from beneficially owning less than five percent of the stock of any publicly traded company or merging with any other entity.

5.10. Non-Solicitation Agreement of Purchaser. For a period of five years following the date hereof, Purchaser shall not employ, solicit or induce for employment, directly or indirectly, any employees of Seller or any individual who has left the employment of Seller during the preceding six months.

5.11. Cross-Referrals.