SECURITIES PURCHASE AGREEMENT

Exhibit 10.1

SECURITIES PURCHASE AGREEMENT

Dated as of September 29, 2009

between

Norsk Hydro Produksjon AS

and

Ascent Solar Technologies, Inc.

TABLE OF CONTENTS

SECURITIES PURCHASE AGREEMENT, dated as of September 29, 2009 (this “ Agreement ”), between NORSK HYDRO PRODUKSJON AS, a corporation organized under the laws of the Kingdom of Norway (the “ Investor ”), and ASCENT SOLAR TECHNOLOGIES, INC., a corporation organized under the laws of the State of Delaware (the “ Company ”).

RECITALS

WHEREAS, the Company is conducting an underwritten public offering (the “ Public Offering ”) of its Common Stock, par value $0.0001 per share (the “ Company Common Stock ”) to raise up to $46 million (including shares of Company Common Stock to cover overallotments) pursuant to an effective shelf registration statement on file with the Securities and Exchange Commission (the “ SEC ”);

WHEREAS, the Company desires to sell to the Investor, and the Investor desires to purchase from the Company, pursuant to the terms and conditions set forth in this Agreement, such number of shares (the “ Shares ”) of Company Common Stock as is determined by dividing $5,000,000 (five million dollars) by the price per share of Company Common Stock that shares of Company Common Stock are sold for in the Public Offering, which purchase and sale shall be contingent upon the closing of the Public Offering and shall close, if at all, concurrently with the Public Offering;

WHEREAS, concurrently with execution of this Agreement the Investor will enter into a registration rights agreement with the Company with respect to the Shares in the form attached hereto as Exhibit A (the “ Registration Rights Agreement ”); and

WHEREAS, certain terms used in this Agreement are defined in Section 1.01 .

AGREEMENT

NOW, THEREFORE, in consideration of the premises and the mutual agreements and covenants hereinafter set forth, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto hereby agree as follows:

ARTICLE I

DEFINITIONS

SECTION 1.01 Definitions .

(a) For purposes of this Agreement:

“ affiliate ” of a specified person means a person who, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such specified person.

“ beneficial owner ” (and related terms such as “ beneficially owned ” or “ beneficial ownership ”) has the meaning ascribed to such term under Rule 13d-3 of the Exchange Act.

“ Board ” means the Board of Directors of the Company.

“ business day ” means any day on which the principal offices of the SEC in Washington, D.C. are open to accept filings, or, in the case of determining a date when any payment is due, any day on which banks are not required or authorized to close in New York City, New York; Denver, Colorado; or Oslo, Norway.

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“ Bylaws ” means the Amended and Restated Bylaws of the Company, dated April 17, 2007.

“ Certificate of Incorporation ” means the Amended and Restated Certificate of Incorporation of the Company, dated as of October 26, 2005.

“ Class B Warrants ” means non-redeemable Class B public warrants of the Company traded on Nasdaq under the symbol ASTIZ, each of which entitles the holder thereof to purchase one share of Company Common Stock at an exercise price of $11.00 per share.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ contract ” means any agreement, contract, lease, power of attorney, note, loan, evidence of indebtedness, purchase order, letter of credit, settlement agreement, franchise agreement, undertaking, covenant not to compete, employment agreement, license agreement, instrument, obligation, commitment, understanding, policy which constitutes an executory obligation, purchase and sales order, quotation which constitutes an executory commitment and other executory commitments to which a person is a party or to which any of the assets of such person are subject, whether oral or written, express or implied.

“ control ” (including the terms “ controlled by ” and “ under common control with ”) means the possession, directly or indirectly, or as trustee or executor, of the power to direct or cause the direction of the management and policies of a person, whether through the ownership of voting securities, as trustee or executor, by contract, credit arrangement or otherwise; including the ownership, directly or indirectly, of securities having the power to elect a majority of the board of directors or similar body governing the affairs of such person.

“ DGCL ” means the General Corporation Law of the State of Delaware.

“ Environmental Laws ” means any United States federal, state or local Laws in existence on the date hereof relating to pollution or the protection, investigation or restoration of the environment or human health due to exposure to Hazardous Substances.

“ Equity Interest ” means any share, capital stock, partnership, member or similar interest in any person, and any option, warrant, right or security (including debt securities) convertible, exchangeable or exercisable therefor.

“ Expenses ” means all reasonable and documented out-of-pocket costs, fees and expenses (including all fees and expenses of counsel, accountants, experts and consultants to a party hereto and its affiliates) incurred by a party or on its behalf in connection with or related to the authorization, preparation, negotiation and execution of this Agreement and the Registration Rights Agreement and the performance of the Transactions.

“ Hazardous Substances ” means (i) those substances defined in or regulated under the following federal United States statutes and their state counterparts, as each may be amended from time to time, and all regulations thereunder: the Hazardous Materials Transportation Act, the Solid Waste Disposal Act, the Resource Conservation and Recovery Act, the Comprehensive Environmental Response, Compensation and Liability Act, the Clean Water Act, the Safe Drinking Water Act, the Atomic Energy Act, the Toxic Substances Control Act, the Federal Insecticide, Fungicide, and Rodenticide Act, the Occupational Health and Safety Act and the Clean Air Act; (ii) petroleum and petroleum products, including crude oil and any fractions thereof; (iii) natural gas,

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synthetic gas and any mixtures thereof; (iv) polychlorinated biphenyls, asbestos and radon and (v) any substance, material or waste defined as toxic or hazardous or as a pollutant or contaminant, or regulated by any Governmental Authority pursuant to any Environmental Law.

“ Intellectual Property ” means, in any and all jurisdictions throughout the world, all (a) inventions and discoveries (whether or not patentable and whether or not reduced to practice), improvements thereto, and patents, patent applications, invention disclosures and other rights of invention, including any reissues, divisionals, continuations and continuations-in-part, provisionals, reexamined patents or other applications or patents claiming the benefit of the filing date of any such application or patent; (b) trademarks, service marks, trade names, trade dress, logos, Internet domain names, product names, slogans and other identifiers of source or goodwill, including any common law rights, registrations, and applications for registration for any of the foregoing, and including the goodwill symbolized by or associated with any of the foregoing; (c) copyrightable works, all rights in copyrights, including moral rights, copyrights, website content, packaging design and art work and other rights of authorship and exploitation and any applications, registrations and renewals in connection therewith; (d) confidential and proprietary information, including customer and supplier lists and related information, pricing and cost information, business and marketing plans, research and development, advertising statistics, any other financial, marketing and business data, technical data, databases, specifications, designs, drawings, methods, schematics and know-how; (e) to the extent not covered by subsections (a) through (d), above, software and website content; (f) rights of privacy and publicity; (g) any other proprietary, intellectual property and other rights relating to any or all of the foregoing and (h) all claims, causes of action and rights to sue for past, present and future infringement, misappropriation or unconsented use of any of the foregoing intellectual property, the right to file applications and obtain registrations and all products, proceeds and revenues arising from or relating to any and all of the foregoing.

“ knowledge of the Company ” means the actual knowledge of the directors and executive officers of the Company, in each case, after reasonable inquiry.

“ Leased Real Property ” means the property demised under all leases, subleases or other occupancy agreements relating to all real property that the Company leases or subleases or otherwise has any right, title or interest in or to.

“ Lien ” means any charge, mortgage, pledge, deed of trust, hypothecation, right of others, claim, security interest, encumbrance, burden, title defect, title retention agreement, lease, sublease, license, occupancy agreement, easement, covenant, condition, encroachment, voting trust agreement, interest, option, right of first offer, negotiation or refusal, proxy, lien or other similar restrictions or limitations.

“ Material Adverse Effect ” means any event, circumstance, change or effect that (i) has or would have a material adverse effect on the business, operations, assets, liabilities (including contingent liabilities), financial condition or results of operations of the Company or (ii) materially impairs or would materially impair the ability of the Company to consummate the Transactions and perform its other obligations under this Agreement; provided , however , that “Material Adverse Effect” shall not include any event, circumstance, change or effect arising out of or attributable to (i) any increase or decrease in the market price of the shares of the Company Common Stock (but not any event, circumstance, change or effect underlying such increase or decrease to the extent that such event, circumstance, change or effect would otherwise constitute a Material Adverse Effect), (ii) any events, circumstances, changes or effects that generally affect the industries in which the Company operates and that do not materially disproportionately impact the Company, (iii) any changes in the securities markets generally that do not materially disproportionately impact the Company or (iv) any changes in general economic, legal, regulatory or political conditions in the geographic regions in which the Company operates that do not materially disproportionately impact the Company.

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“ Permitted Liens ” means (i) liens for current Taxes not yet due and payable and liens for Taxes being contested in good faith through proper proceedings (for which contested Taxes adequate reserves have been made), (ii) inchoate mechanics’ and materialmen’s liens for construction in progress and (iii) such (A) inchoate workmen’s, repairmen’s, warehousemen’s and carriers’ liens arising in the ordinary course of business of the Company consistent with past practice, and (B) zoning restrictions, survey exceptions, utility easements, rights of way and similar Liens that are typical for the applicable property type and locality (excluding, in each case, any mortgages or other Liens securing borrowed money) which do not materially interfere with the current use of such Leased Real Property.

“ person ” means any individual, corporation, partnership, limited partnership, limited liability company, syndicate, person (including a “person” or “group” each within the meaning of Section 13(d)(3) of the Exchange Act), trust, association or entity or government, political subdivision, agency or instrumentality of a government.

“ Plan ” means (i) all employee benefit plans (as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended) and all bonus, incentive, stock option, stock purchase, restricted stock, phantom stock, or other stock-based compensation, deferred compensation, retiree medical or life insurance, supplemental executive retirement, severance or other benefit plans, programs, trusts or arrangements, and all employment, termination, severance, compensation or other contracts or agreements, to which the Company or any of its affiliates is a party, or which are sponsored by the Company or any of its affiliates for the benefit of any employee, officer or director of the Company, and (ii) any contracts, arrangements, agreements, policies, practices or understandings between the Company or any of its affiliates and any employee of the Company, including any contracts, arrangements or understandings or change in control arrangements relating to a sale of the Company.

“ Release ” shall have the meaning given to such term in the United States Comprehensive Environmental Response, Compensation and Liability Act, 42 USC Section 9601 et seq.

“ subsidiary ” or “ subsidiaries ” of any person means an affiliate controlled by such person, directly or indirectly, through one or more intermediaries.

“ Tax Returns ” means any return, declaration, report, election, claim for refund or information return or other statement or form filed with or submitted to, or required to be filed with or submitted to, any Governmental Authority in respect of Taxes, including any schedule or attachment thereto or amendment thereof.

“ Taxes ” means any and all taxes, fees, levies, duties, tariffs, imposts and other similar charges of any kind (together with any and all interest, penalties, additions to tax and additional amounts imposed with respect thereto) imposed by any Governmental Authority or taxing authority, including taxes or other charges on or with respect to income, franchise, windfall or other profits, gross receipts, property (real or personal), sales, use, capital stock, payroll, employment, occupation, severance, disability, premium, environmental (including taxes under Code Section 59A), social security, workers’ compensation, estimated, unemployment compensation or net worth; alternative or add-on minimum; taxes or other charges in the nature of excise, withholding, ad valorem, stamp, transfer, value-added or gains taxes; license, registration and documentation fees; and customs’ duties, tariffs and similar charges.

“ Transactions ” means execution and delivery of this Agreement and the Registration Rights Agreement, the purchase and sale of the Shares as contemplated by this Agreement, the issuance of the Shares by the Company and the performance of the obligations contemplated by this Agreement and the Registration Rights Agreement.

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(b) The following terms have the meanings set forth in the Sections set forth below:

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(c) Interpretation and Rules of Construction . In this Agreement, except to the extent otherwise provided or that the context otherwise requires:

(i) When a reference is made in this Agreement to an Article, Section, Exhibit or Schedule, such reference is to an Article or Section of, or an Exhibit or Schedule to, this Agreement, unless otherwise indicated;

(ii) The table of contents and headings for this Agreement are for reference purposes only and do not affect in any way the meaning or interpretation of this Agreement;

(iii) Whenever the words “include”, “includes” or “including” are used in this Agreement, they are deemed to be followed by the words “without limitation”;

(iv) The words “hereof”, “herein” and “hereunder” and words of similar import, when used in this Agreement, refer to this Agreement as a whole and not to any particular provision of this Agreement;

(v) All terms defined in this Agreement have the defined meanings when used in any certificate or other document delivered pursuant hereto, unless otherwise defined therein;

(vi) The definitions contained in this Agreement are applicable to the singular as well as the plural forms of such terms;

(vii) References to a person are also to its successors and permitted assigns;

(viii) References to this Agreement or the Registration Rights Agreement are deemed to include a reference to such agreement, as amended, modified or supplemented; and

(ix) The use of “or” is not intended to be exclusive unless expressly indicated otherwise.

ARTICLE II

PURCHASE AND SALE OF SHARES

SECTION 2.01 Purchase and Sale of the Shares . Upon the terms and subject to the conditions of this Agreement, at the Closing, the Company shall issue to the Investor, and the Investor shall purchase, accept and acquire from the Company, the Shares.

SECTION 2.02 Purchase Price . The purchase price for the Shares shall be $5,000,000 (five million dollars) in the aggregate (the “ Purchase Price ”).

SECTION 2.03 Closing . The closing of the issuance, purchase and sale of the Shares (the “ Closing ”) will take place concurrently with the closing of the Public Offering, at the offices of Holland & Knight LLP, 2300 U.S. Bancorp Tower, 111 S.W. Fifth Avenue, Portland, Oregon 97204, unless another time, date or place is agreed to by the Investor and the Company.

SECTION 2.04 Closing Deliveries by the Company . At the Closing, the Company shall deliver or cause to be delivered to the Investor:

(a) duly executed certificates evidencing the Shares, registered in the name of the Investor;

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(b) an executed counterpart of the Registration Rights Agreement;

(c) copies of resolutions duly adopted by the Board authorizing the execution, delivery and performance of this Agreement, the Registration Rights Agreement and the sale and issuance of the Shares to the Investor; and

(d) copies of Listing of Additional Shares Notices filed with Nasdaq by or on behalf of the Company in respect of the Shares and a certificate of the President of the Company certifying that no objection has been received by the Company from Nasdaq regarding such notices that has not been cured or waived.

SECTION 2.05 Closing Deliveries by the Investor . At the Closing, the Investor shall deliver to the Company:

(a) the Purchase Price by wire transfer in immediately available funds to an account specified by the Company in writing no less than two (2) business days prior to the Closing; and

(b) an executed counterpart of the Registration Rights Agreement.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

As an inducement to the Investor to enter into this Agreement, except as set forth in the Disclosure Schedule, which identifies exceptions by specific Section references, dated as of the date hereof delivered by the Company to the Investor (the “ Disclosure Schedule ”), the Company hereby represents and warrants to the Investor that:

SECTION 3.01 Organization and Qualification; No Subsidiaries .

(a) The Company is a corporation duly organized, validly existing and in good standing under the Laws of the State of Delaware and has the requisite corporate power and authority to own, lease and operate its properties and to carry on its business as it is now being conducted. The Company is duly qualified or licensed as a foreign corporation to do business, and is in good standing, in each jurisdiction where the character of the properties owned, leased or operated by it or the nature of its business makes such qualification, licensing or good standing necessary, except for such failures to be so qualified or licensed and in good standing that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) The Company does not (i) directly or indirectly own any Equity Interest, or any interest convertible into or exchangeable or exercisable for any Equity Interest in, any person or (ii) have any subsidiaries.

SECTION 3.02 Certificate of Incorporation and Bylaws . The Company has heretofore made available to the Investor a complete and correct copy of the Certificate of Incorporation and the Bylaws, each as amended to date, of the Company. Such Certificate of Incorporation and Bylaws of the Company are in full force and effect. The Company is not in violation of any of the provisions of its Certificate of Incorporation or Bylaws. True and complete copies of all minute books of the Company containing minutes for the period from October 26, 2005 to the date of this Agreement have been made available by the Company to the Investor.

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SECTION 3.03 Capitalization .

(a) The authorized capital stock of the Company consists of 75,000,000 shares of Company Common Stock and 25,000,000 shares of preferred stock, par value $0.0001 per share (the “ Company Preferred Stock ”). As of September 23, 2009, (i) 21,157,261 shares of Company Common Stock were issued and outstanding, all of which were validly issued, fully paid, nonassessable and free of preemptive rights and (ii) no shares of Company Common Stock were held in the treasury of the Company. As of September 23, 2009, 1,083,281 shares of Company Common Stock were issued or issuable (and 2,500,000 shares of Company Common Stock were reserved for issuance) upon exercise of outstanding employee stock options granted pursuant to the Company’s 2005 Stock Option Plan, as amended through the date of this Agreement (the “ Company Stock Option Plan ”). As of the date hereof, no shares of Company Preferred Stock are issued and outstanding. As of September 23, 2009, 10,502,583 Class B Warrants were issued and outstanding. Except as set forth in this Section 3.03 and Section 3.10 , there are no options, warrants or other rights, agreements, arrangements or commitments of any character to which the Company is a party or by which the Company is bound relating to the issued or unissued capital stock or other Equity Interests of the Company, or securities convertible into or exchangeable for such capital stock or other Equity Interests, or obligating the Company to issue or sell any shares of its capital stock or other Equity Interests, or securities convertible into or exchangeable for such capital stock of, or other Equity Interests in, the Company. Since September 23, 2009 the Company has not issued any shares of its capital stock, or securities convertible into or exchangeable for such capital stock or other Equity Interests, other than those shares of capital stock reserved for issuance as set forth in this Section 3.03 or in Section 3.03(a) of the Disclosure Schedule . Set forth in Section 3.03(a) of the Disclosure Schedule is a true and complete list, as of September 20, 2009, of the prices at which outstanding options issued under the Company Stock Option Plan (the “ Company Options ”) may be exercised under the Company Stock Option Plan, the number of Company Options outstanding at each such price and the vesting schedule of the Company Options (i) granted to each “executive officer” of the Company (within the meaning of such term under Section 16 of the Exchange Act) or which are “incentive stock options” within the meaning of Section 422 of the Code granted to any person. All shares of Company Common Stock issued upon exercise of a Company Option have been and will be duly authorized, validly issued, fully paid and nonassessable. Except as set forth in Section 3.03(a) of the Disclosure Schedule , there are no outstanding contractual obligations of the Company (A) restricting the transfer of, (B) affecting the voting rights of, (C) requiring the repurchase, redemption or disposition of, or containing any right of first refusal with respect to, (D) requiring the registration for sale of or (E) granting any preemptive or antidilutive right with respect to, any shares of Company Common Stock or any capital stock of, or other Equity Interests in, the Company. There are no outstanding contractual obligations of the Company to provide funds to, or make any investment (in the form of a loan, capital contribution or otherwise) in, any person.

(b) The Shares, when issued, paid for and delivered in accordance with the terms of this Agreement, will be duly authorized, validly issued, fully paid and nonassessable and not subject to preemptive rights.

SECTION 3.04 Authority . The Company has all necessary power and authority to execute and deliver this Agreement and the Registration Rights Agreement, to perform its obligations hereunder and thereunder and to consummate the Transactions. The Company’s execution and delivery of this Agreement and the Registration Rights Agreement and the consummation by the Company of the Transactions have been duly and validly authorized by all necessary corporate action and no other corporate proceedings on the part of the Company are necessary to authorize this Agreement or the Registration Rights Agreement or to consummate the Transactions. The Board has approved this Agreement, the Registration Rights Agreement, and the issuance of the Shares. This Agreement and the Registration Rights Agreement have been duly authorized and validly executed and delivered by the Company

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and, assuming the due authorization, execution and delivery by the Investor, this Agreement and the Registration Rights Agreement constitute a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with their respective terms.

SECTION 3.05 No Conflict; Required Filings and Consents .

(a) The execution and delivery by the Company of this Agreement and the Registration Rights Agreement do not, and the performance of its obligations hereunder and thereunder will not, (i) conflict with or violate the Certificate of Incorporation or Bylaws of the Company, (ii) assuming that all consents, approvals, authorizations and other actions described in subsection (b) have been obtained and all filings and obligations described in subsection (b) have been made, conflict with or violate any domestic or, to the knowledge of the Company, foreign, statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order (“ Law ”) applicable to the Company or by which any property or asset of the Company is bound or affected or (iii) require any consent or approval under, result in any breach of or constitute a default (or an event which, with notice or lapse of time or both, would become a default) under, or give to others any right of termination, amendment, acceleration or cancellation of, or give to others a right to require any payment to be made under, or result in the creation of a Lien or other encumbrance on any property or asset of the Company pursuant to, any note, bond, mortgage, indenture, contract, agreement, lease, license, permit, franchise or other instrument or obligation, except, with respect to clauses (ii) and (iii), for any such conflicts, violations, breaches, defaults or other occurrences which would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

(b) The execution and delivery by the Company of this Agreement and the Registration Rights Agreement do not, and the performance of its obligations hereunder and thereunder will not, require any consent, approval, authorization or permit of, or filing with or notification to, any United States federal, state, county or local or, to the knowledge of the Company, foreign, government, governmental, Tax, regulatory or administrative authority, agency, instrumentality or commission or any court, tribunal or judicial or arbitral body (a “ Governmental Authority ”), except (i) for (A) applicable requirements, if any, of the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder (the “ Exchange Act ”), state securities or “ blue sky ” laws (“ Blue Sky Laws ”), and (B) any filings required under the rules and regulations of the Nasdaq Stock Market (“ Nasdaq ”) and (ii) where the failure to obtain such consents, approvals, authorizations or permits, or to make such filings or notifications, would not, individually or in the aggregate, reasonably be expected to (1) prevent or materially delay consummation of the Transactions, (2) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or the Registration Rights Agreement or (3) have a Material Adverse Effect.

SECTION 3.06 Permits; Compliance . The Company is in possession of all franchises, grants, authorizations, licenses, permits, easements, variances, exceptions, consents, certificates, approvals and orders of any United States Governmental Authority and, to the knowledge of the Company, any foreign Governmental Authority, necessary for the Company to own, lease and operate its properties or to carry on its business as it is now being conducted and substantially as described in the Company’s SEC Reports filed prior to the date hereof (the “Permits”), and all such Permits are valid, and in full force and effect, except where the failure to have, or the suspension or cancellation of, or failure to be valid or in full force and effect of, any of the Permits would not, individually or in the aggregate, reasonably be expected to (A) prevent or materially delay consummation of the Transactions, (B) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or any Registration Rights Agreement to which it is a party or (C) have a Material Adverse Effect. As of the date hereof, no suspension or cancellation of any

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of the Permits is pending or, to the knowledge of the Company, threatened, except where the failure to have, or the suspension or cancellation of, any of the Permits would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. The Company is not in conflict with, or in default, breach or violation of, (i) any domestic United States Law or, to the knowledge of the Company, any foreign Law, applicable to the Company or by which any property or asset of the Company is bound or affected, or (ii) any Permits, except for any such conflicts, defaults or violations that would not, individually or in the aggregate, reasonably be expected to (A) prevent or materially delay consummation of the Transactions, (B) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or the Registration Rights Agreement or (C) have a Material Adverse Effect. Since the enactment of SOX, the Company and each of its officers and directors have been and are in compliance in all material respects with (A) the applicable provisions of SOX and the related rules and regulations promulgated thereunder and under the Exchange Act and (B) the applicable listing and corporate governance rules and regulations of Nasdaq.

SECTION 3.07 SEC Filings; Financial Statements .

(a) The Company has timely filed all forms, reports and documents (including all exhibits) required to be filed by it with the SEC since July 10, 2006 (the “ SEC Reports ”). The SEC Reports (i) were prepared in accordance with the requirements of the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder (the “ Securities Act ”) or the Exchange Act, as the case may be and (ii) did not at the time they were filed contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading. As of the date hereof, the Company is eligible to register securities on Form S-3 of the Securities Act.

(b) Each of the financial statements (including, in each case, any notes thereto) contained in the SEC Reports was prepared in accordance with United States generally accepted accounting principles (“ GAAP ”) applied on a consistent basis throughout the periods indicated (except as may be indicated in the notes thereto) and the Company’s books and records, and each fairly presented the financial position, results of operations and cash flows of the Company as at the respective dates thereof and for the respective periods indicated therein except as otherwise noted therein (subject, in the case of unaudited statements, to normal year-end adjustments which individually or in the aggregate did not have, and would not reasonably be expected to have, a Material Adverse Effect). The books and records of the Company have been, and are being, maintained in accordance with applicable legal and accounting requirements in all material respects.

(c) Except as and to the extent set forth on the balance sheet of the Company as of June 30, 2009 included in the Company Form 10-Q for the quarterly period ended June 30, 2009, including the notes thereto, the Company has no liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise), except for liabilities or obligations incurred since June 30, 2009 that would not, individually or in the aggregate, reasonably be expected to (A) prevent or materially delay consummation of the Transactions, (B) otherwise prevent or materially delay performance by the Company of any of its material obligations under this Agreement or the Registration Rights Agreement or (C) have a Material Adverse Effect.

(d) The Company has previously made available to the Investor a complete and correct copy of any amendment or modification which has not yet been filed with the SEC to any agreement, document or other instrument which previously had been filed by the Company with the SEC pursuant to the Securities Act or the Exchange Act.

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(e) As of the date hereof, neither the Company nor, to the knowledge of the Company, any of the Company’s employees, is the subject of any formal or informal investigation by the SEC, and, to the knowledge of the Company, no such investigation has been threatened or in fact exists which would reasonably be expected to result in the institution of any such investigation. Written correspondence (other than any transmittal letter or other correspondence that does not address substantively any comments or questions from, or ongoing discussions with, the SEC), with the SEC since July 10, 2006 until the date hereof has been made available to the Investor. The audit committee of the Board has established “whistleblower” procedures that meet the requirements of Exchange Act Rule 10A-3, and has made available to the Investor true, complete and correct copies of such procedures. The Company has received no “complaints” (within the meaning of Exchange Act Rule 10A-3) in respect of any accounting, internal accounting controls or auditing matters. To the knowledge of the Company, no complaints seeking relief under Section 806 of SOX have been filed with the United States Secretary of Labor and no employee has threatened to file any such complaint.

SECTION 3.08 Absence of Certain Changes or Events . Except as expressly contemplated by this Agreement or as set forth in Section 3.08 of the Disclosure Schedule , since June 30, 2009 through the date hereof, the Company has conducted its business in the ordinary course consistent with past practice and, since such date through the date hereof, (i) there has not occurred any Material Adverse Effect or an event or development that would, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect or any event or development that would, individually or in the aggregate, reasonably be expected to prevent or materially delay the performance of this Agreement or the Registration Rights Agreement by the Company and (ii) the Company has not (A) issued, sold, pledged, disposed, granted or encumbered any shares of any class o