Common use of Second Closing Clause in Contracts

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agree.

Second Closing. The Company shall notify On any business day during the Purchaser upon achievement of period beginning on the Milestone. The second First Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Closing Dateand ending on June 10, 2019, and upon the terms and subject to the conditions set forth herein, the Purchasers shall have the right and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3option, but not the obligation (the “Purchase Right”), by delivery to the Company agrees of a purchase notice signed by each Purchaser (the “Purchase Notice”), to sellrequire the Company to issue and sell to each Purchaser, and the Purchasersin which case each Purchaser shall purchase, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in (a) the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the respective number of Shares as specified below such Purchaser’s name set forth opposite the names of the Purchasers under the heading “Number of Shares to be Purchased in the Second Closing” on Exhibit A attached hereto (the signature page “Second Closing Shares”) and (b) Common Warrants to purchase 0.25 shares of this Agreement Common Stock for every one Share purchased in the Second Closing (for the avoidance of doubt, the respective numbers of Common Warrant Shares issuable upon exercise of the Common Warrants to be purchased by it at the second Closing, representing Second Closing are set forth opposite the percentage names of the issued Purchasers under the heading “Number of Common Warrant Shares Underlying Common Warrants Purchased in the Second Closing” on Exhibit A attached hereto) (the “Second Closing Common Warrants”), at a price per Share and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, accompanying Common Warrant equal to the extent that a Purchaser determinesPer Unit Purchase Price, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser subject to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and the Company and each Purchaser shall deliver the other items purchase rights set forth in Section 2.2 deliverable at 8.13. The Common Warrants shall have an exercise price per Common Warrant Share equal to the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agreeWarrant Exercise Price.

Second Closing. The Company shall notify (a) In the Purchaser upon achievement event that prior to April 7, 2005 (the “Option Period”), a public announcement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3Clinical Event has occurred, the Company agrees shall have the right to sellrequire a second closing (the “Second Closing”) pursuant to which the Company shall issue and sell to each Purchaser, and the Purchaserseach Purchaser shall, severally and not jointly, agree purchase from the Company, one-half of such number of Units as set forth opposite such Purchaser’s name in Exhibit A attached hereto at the Per Unit Purchase Price, which shall be in addition to purchasethe Units purchased under Section 2.2. The Second Closing shall occur within two (2) business days after the public announcement of the Clinical Event. At the Second Closing, an aggregate of $7,500,000 of Sharesthe Company shall deliver or cause to be delivered to each Purchaser the following: (i) a Warrant, representing registered in the aggregate [—%] name of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each such Purchaser, severally and not jointly, agrees pursuant to purchase, which such Purchaser shall have the right to acquire such number of Warrant Shares as specified below set forth opposite such Purchaser’s name on Exhibit A under the signature page of this Agreement heading “Second Closing Warrant Shares,” on the terms set forth therein; (ii) an instruction letter to be purchased by it at the second Closing, representing Transfer Agent in the percentage of the issued form set forth on Exhibit C hereto; and outstanding shares (iii) a certificate from a duly authorized officer certifying on behalf of the Company on that a Fully Diluted Basis public announcement of the Clinical Event has occurred. At the Second Closing, each Purchaser shall instruct the Escrow Agent to deliver an amount equal to the Per Unit Purchase Price multiplied by one-half of the number of Units as specified below set forth opposite such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determinesExhibit A, in its sole discretionUnited States dollars and in immediately available funds, that by wire transfer to an account designated in writing to such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to for such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaserpurpose, and the Company shall deliver consent to each Purchaser its respective Shares and the Company and each such instruction. Each Purchaser shall deliver have the other items set forth in Section 2.2 deliverable right, at any time during the Option Period, to request a Second Closing and to purchase on the terms provided herein up to the total amount of the Units that could be purchased by such Purchaser at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agree.

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 3,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (Preferred Stock with an aggregate Stated Value for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees Purchaser equal to purchase, the number of Shares as specified below such Purchaser’s name Subscription Amount as set forth on the signature page of this Agreement to be purchased hereto executed by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, as determined pursuant to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership LimitationSection 2.2(a). The Second Closing shall occur on, or as such Purchaser may otherwise choosesoon as reasonably practicable following, and in lieu any event within 5 Trading days of, the date on which the Registration Statement registering all of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result the Registrable Securities (as defined in the same aggregate purchase price being paid Registration Rights Agreement) is declared effective by such Purchaser to the CompanyCommission (the “Second Closing”). Each On the Second Closing Date, each Purchaser shall deliver to the Company Escrow Agent, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction In connection with the initial Registration Statement filed by the Company, upon receipt by the Company of notification (oral or written, whichever occurs earlier) from the Commission that such Registration Statement shall not be reviewed or shall not be subject to further review, the Company shall have promptly delivered written notice thereof to each Purchaser, which written notice (1) shall be delivered to the Purchasers contemporaneously with the Company’s filing with the Commission of a request of a request for acceleration in accordance with Rule 461 promulgated under the Securities Act and (2) shall include the proposed date of effectiveness of the covenants and conditions set forth in Sections 2.2 and 2.3Registration Statement, which shall not be later than 5 Trading Days following the second Closing shall occur remotely via delivery date of such notice to the exchange of documents and signature or such other location as the parties shall mutually agreePurchasers.

Second Closing. The Company shall notify Upon the Purchaser upon achievement effectiveness of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days registration statement registering the shares of notice from the Company Common Stock issuable upon conversion of the Milestone. On Convertible Debentures and those issuable upon exercise of the second Closing Date, upon Warrants (the “Registration Statement”) subject to the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the PurchasersInvestors, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] aggregate, US$200,000 of the issued and outstanding Convertible Debentures, convertible into shares of the Company on a Fully Diluted Basis as Common Stock of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser Investor shall deliver to the Company via wire transfer, Escrow Agent immediately available funds equal to such Purchaser’s Subscription Amount in their proportionate amount of the aggregate Purchase Price, as set forth on the signature page hereto executed by such Purchaserpages hereto, and the Company shall deliver certificates evidencing a Stated Value equal to said Purchase Price to the Escrow Agent, in each Purchaser its respective Shares and case to be held by the Company and each Purchaser shall deliver Escrow Agent pursuant to the other items set forth in Section 2.2 deliverable at the ClosingEscrow Agreement. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3Section 1.1(c), the second Closing shall occur remotely via at the exchange offices of documents the Escrow Agent, at which time the Escrow Agent (x) shall release the Convertible Debentures to the Investors, and (y) shall release such Purchase Price (after all fees have been paid as set forth in the Escrow Agreement), pursuant to the terms of the Escrow Agreement. Each Closing is subject to the satisfaction or waiver by the party to be benefited thereby of the following conditions: At the first Closing, acceptance and execution by the Company and by the Investors, of this Agreement, the Registration Rights Agreement, attached as Exhibit C hereto and the Escrow Agreement; delivery into escrow by each Investor of immediately available funds in the amount of the Purchase Price as indicated and set forth on the signature page hereto; all representations and warranties of the Investors contained herein shall remain true and correct as of each Closing Date; all representations and warranties of the Company contained herein shall remain true and correct as of each Closing Date; the Company shall have obtained all permits and qualifications required by any state for the offer and sale of the Convertible Debentures and Warrants, or shall have the availability of exemptions therefrom; the sale and issuance of the Convertible Debentures and the Warrants hereunder, and the proposed issuance by the Company to the Investors of the Common Stock underlying the Convertible Debentures and the Warrants upon the conversion or exercise thereof shall be legally permitted by all laws and regulations to which the Investors and the Company are subject and there shall be no ruling, judgment or writ of any court prohibiting the transactions contemplated by this Agreement; delivery of the applicable original fully executed certificates of the Convertible Debentures and the Warrants to the Escrow Agent; delivery of the opinion of Xxxxxx Xxxxxx, LLP, counsel to the Company, in the form of Exhibit D hereto; at the First Closing, delivery to the Escrow Agent of the Irrevocable Instructions to Transfer Agent in the form attached hereto as Exhibit E hereto; there shall have been no Material Adverse Effect with respect to the Company since the date hereof; at the Second Closing, the Registration Statement registering the Common Stock underlying the securities (400% of the shares underlying the Convertible Debentures and 100% of the shares underlying the Warrants) will be registered for resale as soon as possible after the Closing Date and shall have been declared effective under the Securities Act by the SEC and shall have remained effective at all times, not subject to any actual or threatened stop order or subject to any actual or threatened suspension at any time prior to such other location Closing Date; at the First Closing, up to $1,000,000 worth of shares of Common Stock (the “Pledged Shares”) shall be placed in escrow with the Investor’s representative pursuant to the Stock Pledge Agreement attached as Exhibit F, hereto. The obligations of the parties Company set forth below under “Registration Rights” will be secured by a pledge of such shares, which Pledged Shares shall mutually agree.have been held for at least two years by one or more existing shareholders of the Company. Such pledgors shall waive all rights of subrogation against the Company in respect of the pledge and such shares shall be Rule 144(k) eligible. If a registration statement covering the shares issuable upon conversion of the Convertible Debentures and exercise of the warrants has not been declared effective within 120 days following the Closing Date, the Investor shall have the right, but not the obligation, to acquire the pledged shares in partial satisfaction of the Company’s obligations under the Convertible Debentures; at Closing, the Company shall be listed on the OTC Bulletin Board, NASDAQ, New York Stock Exchange or American Stock Exchange; and, Prior to the First Closing, the Company shall hire an I.R. firm, acceptable to the Investors, to increase public awareness. Optional Conversion. Investors shall have the following conversion rights:

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Second Closing Date, upon substantially concurrent with the terms execution and subject to delivery of this Agreement by the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3parties hereto, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of up to $7,500,000 [___ million of SharesClass A Units or Class B Units as calculated pursuant to Section 2.2(a). The Second Closing shall occur on, representing or as soon as reasonably practicable following, and in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchaseany event within 5 Trading days of, the number of Shares as specified below such Purchaser’s name date on which, Shareholder Approval is deemed obtained and effective. Notwithstanding anything herein to the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, thatcontrary, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates, Affiliates and any Person acting as a group together with such purchaser Purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess cause such Purchaser’s beneficial ownership of the Beneficial Ownership LimitationOrdinary Shares to exceed 4.99% (or, or as such Purchaser may otherwise chooseat the election of the Purchaser, in lieu 9.99%) of purchasing Shares the outstanding Ordinary Shares, such Purchaser may elect to purchase Warrants Class B Units in lieu of Class A Units as determined pursuant to Section 2.2(a); provided, however, that, in the event that a Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed 19.99% of the outstanding Ordinary Shares, in lieu of Ordinary Shares in excess of such manner to result in the same aggregate purchase price being paid by amount, such Purchaser shall be issued Class B Units as determined pursuant to the CompanySection 2.2(a). Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company. The Company shall deliver to each Purchaser its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Second Closing shall occur remotely via at the exchange offices of documents and signature the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Second Closing Date, the Company shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the account(s) at the Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly deliver electronically such Shares and the Warrants in physical form to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). The Company covenants that, if the Purchaser delivers a Notice of Exercise (as defined in the Series B Warrants) at least one (1) Trading Day prior to the Second Closing Date to exercise any Series B Warrants between the date hereof and the Second Closing Date, the Company shall deliver Ordinary Shares with respect to the Series B Warrants to the Purchaser on the Second Closing Date in connection with such Notice of Exercise.

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Closing Date, upon Subject to the terms and subject to the conditions set forth herein, of this Agreement and upon satisfaction the approval of upon the Company’s Board of Directors and the holders of a majority in interest of the covenants and conditions set forth in Sections 2.2 and 2.3then outstanding Series D Preferred Stock, the Company agrees to sell, and the PurchasersPurchasers (or any affiliate of a Purchaser) agree, severally and not jointly, agree to purchase, an aggregate and the Company agrees to sell and issue up to 266,099 shares of $7,500,000 Series D Preferred Stock to Emergence Capital Partners, L.P., Emergence Capital Associates, L.P., and Emergence Capital Partners SBIC, L.P. (or any affiliate thereof) and up to 532,198 shares of Shares, representing in the aggregate [—%] of the issued and outstanding Series D Preferred Stock to each stockholder who holds shares of the Company on a Fully Diluted Basis Company’s Preferred Stock as of the signing date Initial Closing (or any affiliate thereof) on a pro rata basis at the price and on the terms set forth herein at a single subsequent closing (the “Subsequent Closing”). Upon payment of the purchase price for the Series D Preferred Stock being purchased and execution of a signature page counterpart to this Agreement and the Third Amended and Restated Investor Rights Agreement of even date herewith and attached hereto as Exhibit D (for this purpose only, not taking into account the issuances of Shares at the first Closing“Investor Rights Agreement”), whereby each Purchaserthe Third Amended and Restated Voting Agreement of even date herewith and attached hereto as Exhibit E (the “Voting Agreement”), severally and not jointlythe Third Amended and Restated Co-Sale Agreement of even date herewith and attached hereto as Exhibit F (the “Co-Sale Agreement” and together with the Investor Rights Agreement and the Voting Agreement the “Investment Agreements”), agrees and without need for an amendment hereto or thereto except to purchase, the number of Shares as specified below add such Purchaser’s name on to Exhibit A to this Agreement and to the signature page appropriate exhibits of the Investment Agreements, any such purchaser shall become a party to this Agreement and the Investment Agreements, and shall be deemed a “Purchaser” for purposes of this Agreement to be purchased by it at and the second ClosingInvestment Agreements, representing the percentage in each case as of the issued and outstanding shares date of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agree.

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Closing Date, upon Upon the terms and subject to the conditions set forth hereinof this Agreement, at the Second Closing, each of CMBP II, CMBCV and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.355th Street (collectively, thx "Xxxxxxxent Purchasers") hereby agrees to purchase from the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s and warrants to purchase Shares in the form of Exhibit B hereto (the "Subsequent Warrants" and, collectively with the Initial Warrants, the "Warrants") set forth opposite its name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such PurchaserSchedule 2.2(b)(ii), and the Company shall hereby agrees to issue, sell and deliver to the Subsequent Purchasers against payment of the purchase price in immediately available funds an aggregate number of Shares determined in accordance with the next succeeding sentence (the "Subsequent New Shares " and, collectively with the Initial New Shares, the "New Shares") and Warrants to purchase an aggregate number of Shares determined in accordance with the second succeeding sentence, in each Purchaser its respective case, free and clear of all Encumbrances, for an aggregate purchase price of not less than $50.0 million and not greater than $75.0 million (the "Subsequent New Shares Purchase Price" and, collectively with the Initial New Shares Purchase Price, the "New Shares Purchase Price"), as determined in accordance with Section 5.3(iv) of the Stockholders Agreement. At the Second Closing, the Company will issue, sell and deliver to the Subsequent Purchasers and the Subsequent Purchasers will purchase from the Company an aggregate number of Subsequent New Shares equal to the quotient of the Subsequent New Shares Purchase Price divided by $16.00. At the Second Closing, the Company will issue, sell and deliver to the Subsequent Purchasers and the Subsequent Purchasers will purchase from the Company Subsequent Warrants to purchase an aggregate number of Shares (without giving effect to any adjustment as provided in the Subsequent Warrants) equal to the product of the Subsequent New Shares Purchase Price multiplied by 0.0045. The purchase by the Subsequent Purchasers of the Subsequent New Shares and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location Subsequent Warrants is hereinafter collectively referred to as the parties shall mutually agree"Subsequent Purchase".

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 9,606,027.00 of SharesUnregistered ADSs and Warrants, representing in which closing shall occur on the aggregate [—%] closing date of the issued Arrangement and outstanding shares of Share Exchange (the Company on a Fully Diluted Basis as of “Second Closing”). Notwithstanding anything herein to the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, thatcontrary, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser Purchaser’s Second Closing Subscription Amount (together with such Purchaser’s Affiliates, Affiliates and any Person acting as a group together with such purchaser Purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Pre-Funded Warrants in lieu of the Unregistered ADSs as determined pursuant to Section 2.2(a). For purposes of this Section 2.1(b), the “Beneficial Ownership Limitation” shall be 4.99% (or, at the election of the Purchaser at the Second Closing, 9.99%) of the number of Ordinary Shares in such manner outstanding immediately after giving effect to result the issuance of the securities on the Second Closing Date. In each case, the election to receive Pre-Funded Warrants is solely at the option of the Purchaser. At least five (5) Business Days before the anticipated Second Closing Date, the Company shall deliver written notice to Purchaser (the “Closing Notice”) specifying (i) the anticipated Second Closing Date and (ii) the escrow wire instructions for delivery of the Purchaser’s Second Closing Subscription Amount to the Escrow Agent. No later than two (2) Business Days prior to the Second Closing Date as set forth in the same aggregate purchase price being paid by such Purchaser to Closing Notice, the Company. Each Purchaser shall deliver to the Company via wire transfer, in United States dollars and in immediately available funds funds, such amount equal to such Purchaser’s Second Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and Purchaser to the Escrow Agent to the escrow account specified by the Company in the Closing Notice, such funds to be held by the Escrow Agent in escrow. The Company shall deposit the Ordinary Shares with the Depositary and deliver to each Purchaser its respective Shares Unregistered ADSs and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Second Closing shall occur remotely via take place by remote communications and by the exchange of documents and signature signatures by electronic transmission on the Second Closing Date, or at such other time, date and location as the parties shall mutually agree, and the Company and the Placement Agent shall deliver to the Escrow Agent the Form of Escrow Release Notice (as defined in the Escrow Agreement), duly executed.

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of $7,500,000 _____ of SharesShares and Warrants which closing shall occur on, representing or as soon as reasonably practicable following, and in any event within 5 Trading days of, the date on which the Registration Statement registering all of the Registrable Securities (as defined in the aggregate [—%] of Registration Rights Agreement) is filed with the issued and outstanding shares of Commission (the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first “Second Closing”), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing such Shares in excess of the Beneficial Ownership Limitation at the Second Closing, such Purchaser may elect to purchase Warrants in lieu such Shares on the Third Closing Date. The “Beneficial Ownership Limitation” shall be 9.99% of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser number of shares of the Common Stock outstanding immediately after giving effect to the Companyissuance of the Securities on the Closing Date. Each Purchaser shall deliver to the Company Company, via wire transfertransfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount with respect to the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Second Closing shall occur remotely via at the exchange offices of documents and signature EGS or such other location as the parties shall mutually agree.

Second Closing. The Company shall notify (a) Following the Purchaser upon achievement Company’s distribution of the Milestone. The second Second Closing Date Notice (as defined below), at the Second Closing (which, for the avoidance of doubt, shall be a Business Day within five (5) Business Days of notice from occur on the Company of the Milestone. On the second Second Closing Date), upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company hereby agrees to sellissue and sell to each Purchaser, and each Purchaser agrees to purchase from the PurchasersCompany, severally and not jointly, agree to purchaseall or a portion of a number of shares of Common Stock or Pre-Funded Warrants (such securities, collectively, the “Second Closing Shares”) in an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below purchase amount set forth opposite such Purchaser’s name on Exhibit B hereto, at a purchase price per share equal to the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage Second Closing Purchase Price. The Company shall provide each Purchaser written notice of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any amount of such Purchaser’s Affiliates) would beneficially own in excess Second Closing Shares as promptly as possible following the Company’s calculation of the Beneficial Ownership LimitationSecond Closing Purchase Price. The sales made at the Second Closing shall be made on the terms and conditions set forth in this Agreement, or provided that (i) the representations and warranties of the Company set forth in Section 3.1 hereof shall speak only as such Purchaser may otherwise chooseof the Initial Closing Date, in lieu and (ii) the representations and warranties of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result the Purchasers participating in the same aggregate purchase price being paid by such Purchaser to Second Closing set forth in Section 3.2 hereof shall speak as of the CompanySecond Closing Date. Each (b) At the Second Closing, each Purchaser shall deliver to the Company via wire transfer, transfer immediately available funds equal to such Purchaser’s Subscription Amount as set forth on its aggregate purchase price for the signature page hereto executed by such Purchaser, Second Closing Shares and the Company shall deliver to each Purchaser certificate(s) or book-entry shares representing its respective Second Closing Shares. (c) Following the distribution of the Second Closing Notice and in the event that a Material Adverse Effect has not occurred, in the event that a Purchaser fails to purchase at the Second Closing at least 50% of the total number of Second Closing Shares required to be purchased by such Purchaser pursuant to this Section 2.3 (any such Purchaser being referred to herein as a “Non-Participating Purchaser”), then the initial Warrant held by such Purchaser, to the extent not exercised prior to the Second Closing, shall automatically terminate and be of no further force or effect. The aforementioned forfeiture of the Warrant shall be the sole recourse of the Company and each for any failure of a Purchaser shall deliver to purchase all of the other items set forth in Section 2.2 deliverable Second Closing Shares required to be purchased at the Second Closing. Upon satisfaction (d) If the Company elects to offer additional shares of Common Stock to the Purchasers in an amount greater than the aggregate Second Closing Shares, the Purchasers shall have the option, but not the obligation, to purchase, on a pro rata basis, such additional shares of Common Stock (the “Optional Closing Common Shares”) at a price per share equal to the Second Closing Purchase Price. Each Purchaser’s “pro rata share” of the covenants and conditions set forth in Sections 2.2 and 2.3Optional Closing Common Shares shall be equal to the product of, rounded down to the nearest whole share, the second aggregate number of Optional Closing shall occur remotely via Common Shares multiplied by the exchange quotient of documents (i) (A) the total number of shares of Common Stock or shares issuable upon the exercise of the Pre-Funded Warrants previously purchased by such Purchaser at the Initial Closing and signature or such other location as Second Closing, divided by (B) the parties shall mutually agree.total number of shares of Common Stock and shares issuable upon the exercise of the Pre- 5. 74109921_16

Second Closing. 4.2.1 The Company shall notify the Purchaser upon achievement closing of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from issuance by the Company Company, and acquisition/purchase by the Purchasers, of the Milestone. On Preferred Shares and Additional Preferred Shares hereunder (the second Closing "SECOND Closing") shall take place (a) at the offices of Browxxxxxx Xxxtx & Xarbxx, X.C., 410 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, xx the forty-sixth (46th) day immediately following the FCC Approval Date, upon provided that all of the terms and subject conditions to the conditions set forth hereinSecond Closing, and upon satisfaction of the covenants and conditions as set forth in Sections 2.2 Section 9 below, have been fully satisfied as of that date (or one or more such conditions have been waived by the Purchasers and/or the Company, as the case may be) or, if all of such conditions to the Second Closing have not been satisfied (or waived, as the case may be) by such forty-sixth (46th) day, then on the first day thereafter that all of such conditions have been fully satisfied (or waived as the case may be) or (b) at such other place and 2.3, time as may be mutually agreeable to the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in . At the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective (other than a Purchaser that has timely delivered a Notice Not to Close to the Company) stock certificates evidencing the Preferred Shares and Additional Preferred Shares it is acquiring hereunder (in each case in the Company and number set forth opposite each Purchaser's name on SCHEDULE II hereto) upon receipt (a) from each Purchaser shall deliver (other than a Purchaser that has timely delivered a Notice Not to Close to the other items Company) of its Note (for which the Preferred Shares are being issued pursuant to the Note Conversion procedures set forth in Section 2.2 deliverable at 5.4 below) marked "Paid In Full" and (b) payment from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Closing. Upon satisfaction Company) of the covenants and conditions aggregate purchase price for its Additional Preferred Shares (as set forth in Sections 2.2 on SCHEDULE II hereto) by a cashier's or certified check or by wire transfer of immediately available funds to the Company's account at Norwest Bank of Colorado, ABA #102000000, Xxcount #1078000000, Xxntact: Paul Xxxxxxxx. Xxch stock certificate evidencing the Preferred Shares and 2.3Additional Preferred Shares issued to each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Company), the second Closing upon issuance to thereof, shall occur remotely via the exchange of documents and signature be duly executed by an authorized officer or such other location officers, as the parties shall mutually agree.case may be, of the Company. Notwithstanding anything herein to the contrary, any Purchaser that timely delivers a Notice Not

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Closing Date, upon the terms Upon and subject to the terms and conditions set forth hereinof this Agreement, at the Second Closing, Sellers shall sell, transfer, assign and deliver to Purchaser, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to Purchaser shall purchase, an aggregate acquire and accept from Sellers, all of $7,500,000 of SharesSellers' right, representing title and interest in and to all the aggregate [—%] of Initial Assets identified in Schedule 2.1(b)(ii) that meet the issued and outstanding shares of the Company on a Fully Diluted Basis Conditions Precedent as of the signing date Second Closing, free and clear of this Agreement (for this purpose onlyall Liens other than Permitted Liens. Notwithstanding the foregoing, not taking into account the issuances of Shares if, at the first time of the Second Closing), whereby each there is an Open Title Condition with respect to any Initial Assets identified in Schedule 2.1(b)(ii) and such failure would have the effect of reducing the TCF Product payable for such Initial Assets at the Second Closing below the Second Closing Amount, but all the Conditions Precedent to the Second Closing other than the Title Condition are met with respect to such Initial Assets, then (i) Sellers shall sell, transfer, assign and deliver to Purchaser, severally and not jointly, agrees to Purchaser shall purchase, acquire and accept from Sellers, all of Sellers' right, title and interest in and to such Initial Assets identified in Schedule 2.1(b)(ii) with respect to which the number of Shares as specified below Title Condition is satisfied, and (ii) such Purchaser’s name on Open Title Assets will become Managed Assets pursuant to the signature page of this Management Agreement so that the aggregate TCF Product for the Second Closing, with respect to such Initial Assets to be purchased by it transferred and such Managed Assets, shall be not less than the Second Closing Amount. For the avoidance of doubt, at the second Second Closing, representing the percentage of the issued Schedule 2.1(b)(ii) shall identify and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser Sellers shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, Initial Assets and the Company shall deliver to each Purchaser its respective Shares and Managed Assets to be managed under the Company and each Purchaser shall deliver Management Agreement that generate, in the other items set forth aggregate, TCF Product in Section 2.2 deliverable at amount not less than the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agreeAmount.

Second Closing. The Company shall notify Following the Purchaser upon achievement of the Milestone. The second First Closing Date shall be a Business Day within five (5) Business Days of notice from and until January 6, 2017, the Company of may sell, on the Milestone. On the second Closing Date, upon the same terms and subject conditions as those contained in this Agreement, an additional number of shares of Preferred Stock equal to the conditions set forth hereinMaximum Amount less the amount sold to Purchasers in the First Closing, to one or more Purchasers or such other purchasers as the Company and upon satisfaction of Purchasers otherwise agree in the covenants and conditions manner set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date Section 5.5 of this Agreement (for this purpose onlyeach such other purchaser, not taking into account the issuances of Shares at the first Closingan “Additional Purchaser”), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, that each Purchaser participating in the Initial Closing shall have the right to purchase up to its pro-rata share (based on the extent that a Purchaser determines, in its sole discretion, amounts of Preferred Stock that such Purchaser (together with purchased at the First Closing) of the portion of such Purchaser’s AffiliatesSecond Closing. Each Additional Purchaser that subscribes to the Second Closing shall be required to become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and any Person acting as shall otherwise be deemed a group together “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with such purchaser or any at least 2 Trading Days’ prior notice (but not to exceed 3 Trading Days prior to the Second Closing) of the occurrence of the Second Closing and, if a Purchaser wants to participate, it will provide the Company with at least one Trading Day notice of such Purchaser’s Affiliates) would beneficially own in excess of participation. On the Beneficial Ownership LimitationSecond Closing Date, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each each Purchaser shall deliver to the Company Company, via wire transfertransfer or a certified check, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares shares of Preferred Stock, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agree.

Second Closing. The Company shall notify Subject to the Purchaser upon achievement terms and conditions of this Agreement, after the Closing and at any time on or prior to the date of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from filing by the Company of the Milestoneinitial registration statement required to be filed by it under the Registration Rights Agreement, at a second closing (the “Second Closing”), the Company may issue and sell to one or more individuals and entities approved by the Company’s Board of Directors (each an “Additional Buyer” and collectively, the “Additional Buyers”) an aggregate principal amount of Notes equal to $500,000 at the Purchase Price of $0.9300 for each $1.00 of principal amount of Notes and Warrants to acquire up to Fifty Three Million, Eight Hundred and Seventy Nine Thousand, Three Hundred and Ten (53,879,310) shares of Common Stock. On All sales made at the second Second Closing Date, upon shall be made on the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 this Agreement. At the Second Closing the representations and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares warranties of the Company on a Fully Diluted Basis set forth in Section 3 hereof shall speak as of the signing date of this Agreement Closing Date (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall have no obligation to update the representations and warranties and the Disclosure Schedules to the date of the Second Closing), and the representations and warranties of the Additional Buyers shall speak as of the date of the Second Closing. At the Second Closing, (i) each Additional Buyer and the Company shall execute a counterpart signature page hereto and to the Registration Rights Agreement, (ii) the Company shall cause the Schedule of Buyers hereto to be updated to reflect the purchases made by the Additional Buyers, (iii) each Additional Buyer shall become a “Buyer” hereunder and the Notes and Warrants purchased by such Additional Buyer shall be deemed “Notes” and “Warrants,” respectively, for purposes of this Agreement and the other Transaction Documents, and (iv) subject to the terms and conditions hereof, the Company will deliver to each Purchaser its respective Shares of the Additional Buyers purchasing Notes and Warrants at the Second Closing the applicable Notes and Warrants registered in the name of such Additional Buyer, against payment to the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth Purchase Price therefor in Sections 2.2 and 2.3cash by wire transfer, check or other method acceptable to the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agreeCompany.

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice from the Company of the Milestone. On the second Second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 3,000,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (Preferred Stock with an aggregate Stated Value for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and Warrants as determined pursuant to Section 2.2(a). The Second Closing shall occur on, or as soon as reasonably practicable following, and in any event within 5 Trading days of, the date on which the Registration Statement registering all of the Registrable Securities (as defined in the Registration Rights Agreement) is declared effective by the Commission (the “Second Closing”). On the Second Closing Date, each Purchaser shall deliver to the Escrow Agent, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares shares of Preferred Stock with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction In connection with the initial Registration Statement filed by the Company, upon receipt by the Company of notification (oral or written, whichever occurs earlier) from the Commission that such Registration Statement shall not be reviewed or shall not be subject to further review, the Company shall have promptly delivered written notice thereof to each Purchaser, which written notice (1) shall be delivered to the Purchasers contemporaneously with the Company’s filing with the Commission of a request of a request for acceleration in accordance with Rule 461 promulgated under the Securities Act and (2) shall include the proposed date of effectiveness of the covenants and conditions set forth in Sections 2.2 and 2.3Registration Statement, which shall not be later than 5 Trading Days following the second Closing shall occur remotely via delivery date of such notice to the exchange of documents and signature or such other location as the parties shall mutually agreePurchasers.

Second Closing. The Subject to the terms and conditions hereof, in the event that the Purchase Price paid for the Units does not exceed the Maximum Offering Amount, the Company shall notify agrees to issue and sell to the Purchaser Purchasers who execute this agreement and are listed on Exhibit B hereto and, in consideration of and in express reliance upon achievement the representations, warranties, covenants, terms and conditions of this Agreement, the Milestone. The second Closing Date shall be a Business Day within five (5) Business Days of notice Purchasers, severally but not jointly, agree to purchase from the Company on such Second Closing Date (as defined below), up to such number of Units for an aggregate purchase price that is the Milestonedifference between the gross proceeds from the First Closing and the Maximum Offering Amount (the “Second Closing”). On The First Closing and the second Second Closing Dateare each referred to in this Agreement as a “Closing.” Notwithstanding the foregoing, upon the aggregate number of Units sold in both the First Closing and the Second Closing shall not exceed 7,887,500. Subject to the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3this Agreement, the date and time of the Second Closing (the “Second Closing Date,” and together with the First Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 1:00 p.m., New York City Time, on the date mutually agreed to by the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on Purchasers executing a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closinghereto; provided, however, thatthat such date is not expected to be later than June 30, 2008 and that all of the conditions set forth in Article IV hereof and applicable to the extent that a Purchaser determines, Second Closing shall have been fulfilled or waived in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser accordance herewith. Subject to the Company. Each Purchaser shall deliver to terms and conditions of this Agreement, at the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and Second Closing the Company shall deliver or cause to be delivered to each Purchaser (x) a certificate for the number of Preferred Shares set forth opposite the name of such Purchaser to be listed on Exhibit B hereto, (y) its respective Shares Warrants to purchase such number of shares of Common Stock as is set forth opposite the name of such Purchaser on Exhibit B to be attached hereto and (z) any other documents required to be delivered pursuant to Article IV hereof. At the Company and Second Closing, each Purchaser shall deliver its Purchase Price by wire transfer to the other items set forth in Section 2.2 deliverable at escrow account pursuant to the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location Escrow General Agreement (as the parties shall mutually agreehereafter defined).

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (5A) Business Days of notice from the Company of the Milestone. On the second Closing Date, upon Subject to the terms and subject to the conditions set forth herein, and upon satisfaction of the covenants and conditions set forth in Sections 2.2 Section 4.2 and 2.3elsewhere in this Agreement, beginning on the date on which the initial Registration Statement (as defined in the Registration Rights Agreement) is filed with the Securities and Exchange Commission (the "Commission") with respect to the Units, the Company agrees shall have the right to sell, and deliver a written notice to the PurchasersPurchasers (a "Second Closing Notice") requiring the Purchasers to purchase, severally and not jointly, agree up to purchase, an additional 300 Units (the "Second Tranche Units") for up to an aggregate purchase price of $7,500,000 of Shares, representing in 600,000 (the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing"Second Tranche Purchase Price"), whereby each Purchaser, severally and not jointly, agrees to purchase, . The Second Closing Notice shall set forth the number of Shares Second Tranche Units that the Company intends to sell the Purchasers. At the Second Closing each Purchaser shall be obligated (subject to the terms and conditions herein) to purchase such portion of the Second Tranche Units sold by the Company as specified below equals such Purchaser’s name on 's pro rata portion of the signature page of this Agreement to be purchased by it purchase price for the Initial Units issued and sold at the second Initial Closing, representing the percentage . The closing of the issued purchase and outstanding shares sale of the Company Second Tranche Units (the "Second Closing") shall take place in the same manner as the Initial Closing on a Fully Diluted Basis such date indicated in the Second Closing Notice (which may not be prior to the 10th day after receipt by the Purchasers of the Second Closing Notice or as specified below such Purchaser’s name on otherwise agreed to by the signature page of this Agreement for the second Closingparties); provided, however, that, to that in no case shall the extent that a Purchaser determines, Second Closing take place unless and until the conditions listed in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser Section 4.2 have been satisfied or any of such Purchaser’s Affiliates) would beneficially own in excess waived by the appropriate party. The date of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect Second Closing is hereinafter referred to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agree"Second Closing Date."

Second Closing. The Company Second Closing shall notify take -------------- place on the Purchaser upon achievement earlier to occur of (i) the Milestone. The second Closing Date shall be a Business Day within five date that is ten (510) Business Days of notice from business days after the date that the Company provides written notice to Investor of its desire to effect the MilestoneSecond Closing; or (ii) March 31, 2000 at the offices of Xxxxxxx, Phleger & Xxxxxxxx LLP, 2200 Geng Road, Two Xxxxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 10:00 a.m. (Pacific Time), or at such other time and place as the Company and the Investor mutually agree upon orally or in writing (the "Second Closing", and collectively with the First Closing, a "Closing"). On the second Closing Date, upon Subject to the terms and subject conditions of this Agreement, Investor agrees to purchase at the conditions set forth herein, Second Closing and upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to sellsell and issue to the Investor at the Second Closing, for a purchase price of five million dollars ($5,000,000) (the "Second Purchase Price"), that number of shares of Common Stock (the "Second Closing Shares" and together with the Purchasers, severally and not jointly, agree to purchase, an aggregate of First Closing Shares the "Shares") as is determined by dividing five million dollars ($7,500,000 of Shares, representing in 5,000,000) by the aggregate [—%] average of the issued closing bid and outstanding shares ask price per share for the Common Stock as quoted on the Nasdaq National Market System, or such national securities exchange or over-the-counter trading system on which the Common Stock is traded at such time, on the four trading days immediately preceding the date of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Second Closing; provided, however, that, that the Company will not issue any fractional shares of Common Stock. Any such fractional shares will be rounded to the extent that a Purchaser determinesnearest whole share. Notwithstanding the foregoing, at the Second Closing (whether such Second Closing occurs pursuant to subpart (i) or (ii) above), the Company may, at its option, deliver to the Investor, by check or wire transfer, payment in its sole discretion, that such Purchaser the amount of five million dollars (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates$5,000,000) would beneficially own in excess of (the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, "Cash Option") in lieu of purchasing Shares delivering the Second Closing Shares, and such Purchaser may elect to purchase Warrants payment shall satisfy in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to full the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and the Company and each Purchaser shall deliver the other items set forth in 's obligations under this Section 2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second Closing shall occur remotely via the exchange of documents and signature or such other location as the parties shall mutually agree1.1(b).