Common use of Additional Closing Date Clause in Contracts

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect in the form attached hereto as Exhibit H. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion: (i) Certificate of Designations shall be in full force and effect and shall not have been amended since the Initial Closing Date, and a copy thereof certified by the Secretary of State of The Company Commonwealth of Massachusetts shall have duly executed and been delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this AgreementBuyer. (ii) Such Buyer The Common Stock shall be authorized for quotation on the Principal Market, trading in the Common Stock shall not have received been suspended by Principal Market or the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of SEC on or at any time prior to the Additional Closing Date, in substantially Date and the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall not have been delivered notified of any pending or threatened proceeding or other action to and acknowledged in writing by delist or suspend the Company's transfer agent. (iv) The Company shall have delivered Common Stock on or prior to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above. (iv) Such Buyer shall have received the opinion of the Company's counsel dated as of the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of EXHIBIT C attached hereto. (v) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Preferred Shares being purchased by such Buyer at the Additional Closing. (vi) The Board of Directors of the Company shall have adopted the Resolutions. (vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares outstanding on the Additional Closing Date (after giving effect to the Preferred Shares to be issued on such Additional Closing Date and assuming all such outstanding Preferred Shares were fully convertible or exercisable on such date regardless on any limitation on the timing or amount of such conversions or exercises) which such number of shares of Common Stock shall be fully available to be issued as Conversion Shares under Rule 4460 of the Nasdaq National Market. (viii) The Irrevocable Transfer Agent Instructions, in the form of EXHIBIT D attached hereto as Exhibit H.hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (ix) The Company shall have delivered to such Buyer a letter from certificate evidencing the Companyincorporation and good standing of the Company and each Subsidiary in such corporation's transfer agent certifying state of incorporation issued by the number Secretary of shares State of Common Stock outstanding such state of incorporation as of a date within five 10 days of the Additional Closing. (x) The Company shall have delivered to such Buyer a certified copy of its Articles of Organization as certified by the Secretary of State of The Commonwealth of Massachusetts within ten days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer a clerk's certificate, dated as the Prospectus Additional Closing Date, as to (i) the Resolutions, (ii) the Articles of Organization and (iii) the Prospectus Supplement Bylaws, each as required thereunderin effect at the Additional Closing. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xvxii) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior conditions to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined set forth in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of DesignationsSection 1(c) shall have been satisfied as of on or before the Additional Closing Date. (xxxiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares Notes and the related Additional Warrants at an each of the applicable Additional Closing Closings is subject to the satisfaction, at or before such each of the Additional Closing DateDates, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, ) and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion opinions of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P.Bingham McCutchen LLP, the Company's Xxxxxxx'x Xxxxxx States outside counsel, and Naschitz, Brandes & Co., the Company'x Xxxxxli outside counsel, dated as of the applicable Additional Closing Date, in substantially the a form of Exhibit F attached heretoreasonably acceptable to such Buyer. (iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date and the Company shall have delivered cause its transfer agent to deliver a letter to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentthat effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing and/or valid existence of the Company and each of its Subsidiaries in such entity's jurisdiction of formation of incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the applicable Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation entity and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company conducts business and is required to so qualifybusiness, as of a date within 10 days of the applicable Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the applicable Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such BuyerTransaction Resolutions, (ii) the Certificate Articles of Incorporation Association and (iii) the BylawsMemorandum, each as in effect at the applicable Additional Closing, in the form attached hereto as Exhibit G.I. (viiivii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the applicable Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit H.J. (ixviii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (x) The Common Stock Ordinary Shares (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the applicable Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the applicable Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xiix) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the SecuritiesAdditional Notes and the Additional Warrants being purchased at the applicable Additional Closing. Without limiting the generality of the foregoing, the Company shall have obtained approval by the OCS and the Investment Center for the transactions contemplated hereunder, together with such other agreements as the Buyers shall reasonably require to ensure that the Buyers enjoy full rights with respect to the Collateral (subject to the rights of the OCS under the R&D Law), evidence of which shall have been provided to the Buyers. (xiix) The Registration Statement shall be effective and available for Within six (6) Business Days prior to the issuance and sale of the Securities hereunder and applicable Additional Closing Date, the Company shall have delivered or caused to such be delivered to each Buyer certified copies of UCC search results, listing all effective financing statements which name as debtor the Prospectus and Company or any of its Subsidiaries filed in the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or prior five years to perfect an interest in any court or governmental authority assets thereof, together with copies of competent jurisdiction or any self-regulatory organization having authority over such financing statements, none of which, except as otherwise agreed in writing by the matters contemplated hereby which prohibits the consummation of Buyers, shall cover any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs Collateral (as defined in the Certificate Security Documents) and the results of Designations) of searches for any tax lien and judgment lien filed against such Person or its property, which results, except as otherwise agreed to in writing by the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date Buyers shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that show any such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP Liens (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date Pledge and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement DateSecurity Agreement)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xxxi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation option of each Buyer hereunder to purchase the Additional Preferred Shares and Units at the related Additional Warrants at an Additional Closing is subject to such Buyer's delivery to the Company of an Additional Unit Notice and the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed complied with the requirements of Section l(c) and delivered to such Buyer each all of the Transaction Documents including, without limitation, (iAdditional Notice Conditions set forth in Section l(d) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreementhave been satisfied. (ii) Such Buyer The Common Stock shall be authorized for quotation on the Nasdaq SmallCap Market or the Nasdaq National Market, as applicable; trading in the Common Stock issuable upon conversion of the Debentures and upon exercise of the Warrants, which are to be traded on the Nasdaq SmallCap Market or the Nasdaq National Market, as applicable, shall not have received been suspended by the opinion SEC or The Nasdaq Stock Market, Inc.; and all of Smiththe Conversion Shares issuable upon conversion of the Debentures, Andersonand all of the Warrant Shares issuable upon exercise of the Warrants, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of to be sold at the Additional Closing Dateshall be listed upon the Nasdaq SmallCap Market or the Nasdaq National Market, in substantially the form of Exhibit F attached heretoas applicable. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company in this Agreement shall be true and correct in all material respects (except for those to the extent that any of such representations and warranties that are is already qualified by as to materiality or Material Adverse Effectin Section 3, in which case, such representations and warranties shall be true and correct in all respectswithout further qualification) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c). (iv) Such Buyer shall have received the opinion of the Company's counsel dated as of the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit D attached hereto hereto. (v) The Company shall have executed and delivered to such Buyer the Debentures (in such denominations as Exhibit H.such Buyer shall request) being purchased by such Buyer at the Additional Closing. (vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions. (vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Debentures and the exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion of the then outstanding Debentures and upon exercise of the then outstanding Warrants, including for such purposes any Debentures and any Warrants to be issued at such Additional Closing. (viii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each subsidiary in such corporation's jurisdiction of incorporation issued by the Secretary of State of such jurisdiction of incorporation as of a date within 10 days of the Additional Closing. (ix) The Company shall have delivered to such Buyer a letter from secretary's certificate certifying as to (a) the Company's transfer agent certifying Resolutions, (b) the number Certificate of shares of Common Stock outstanding Incorporation and (c) Bylaws, each as of a date within five days of in effect at the Additional Closing DateClosing. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. (xi) No suit, action or other proceeding shall have been commenced (and be pending) which seeks to restrain or prohibit or questions the validity or legality of the transactions contemplated by the Transaction Documents, nor shall any such suit, action or proceeding be threatened. (xii) All consents, Permits, authorizations, approvals, waivers and amendments required for the consummation of the transactions contemplated by the Transaction Documents shall have been obtained.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants at an the Additional Closing Closings is subject to the satisfaction, at or before such each of the Additional Closing DateDates, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion: (i) The Company shall have duly executed complied with the requirements of Section 1(c) and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as all of the Additional Closing Date, Notice Conditions set forth in substantially the form of Exhibit F attached hereto. (iiiSection 1(d) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, satisfied as of a date within 10 days of the Additional Closing Date. (vii) The Company Certificate of Amendment, shall be in full force and effect and shall not have delivered to such Buyer a certificate evidencing been amended, without the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (knowledge or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days consent of the Additional Buyer, since the Initial Closing Date. (vi) The Company shall have delivered to such Buyer , and a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware New York shall have been delivered to Buyer. (or a fax or pdf copy of such certificateiii) within ten (10) days The Common Stock shall be authorized for quotation on AMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on AMEX shall not have been suspended by the SEC, AMEX and all of the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be sold at the Additional Closing Dateshall be listed upon AMEX. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viiiiv) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Amendment to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect which also shall include an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above. (v) Buyer shall have received the opinion of Xxxxx & Wood LLP, dated as of the Additional Closing Date in substantially the form of Exhibit C attached hereto. (vi) The Company shall have executed and delivered to Buyer the Stock Certificates for the Additional Preferred Shares and the Additional Warrants being purchased by Buyer at the Additional Closing. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions. (viii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares (without regard to any limitations on conversions) and 100% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants, including for such purposes the Additional Preferred Shares and related Warrants to be issued at such Additional Closing. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent and shall be in effect as Exhibit H.of the Additional Closing. (ixx) The Company shall have delivered to such Buyer a letter from certificate evidencing the Companyincorporation and good standing of the Company and each Subsidiary in the state of such corporation's transfer agent state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Additional Closing Date. (xi) The Company shall have delivered to Buyer a certified copy of its Certificate of Incorporation as certified by the Secretary of State of the State of New York within ten days of the Additional Closing Date. (xii) The Company shall have delivered to Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) By-laws and (D) the number of shares of Common Stock outstanding as of a date within five (5) days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, each as of in effect at the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunderClosing. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts numbers as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and in the form attached hereto as Exhibit H.E. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (xiii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xiiv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xiiv) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each any applicable Buyer hereunder to purchase the Additional Preferred Shares Notes and the related Additional Warrants at an the Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each such Buyer's sole benefit and may be waived by such Buyer Buyer's at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, ) and (ii) the related Additional Warrants (allocated in such principal amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., counsel reasonably acceptable to the Company's counselBuyer, dated as of the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit F attached hereto. (iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and the Company shall have delivered cause its transfer agent to deliver a letter to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentthat effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation incorporation and good standing of the Company in its jurisdiction state of formation incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, state of incorporation as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, State of Florida as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) 10 days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such BuyerResolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effectmateriality, which shall be true and correct in all respectsrespect) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects (except for covenants, agreements and conditions that are qualified by materiality, which shall be complied with in all respect) with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit H. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the SecuritiesAdditional Notes and the Additional Warrants being purchased at the Additional Closing. (xiixi) The Registration Statement shall be effective During the period beginning on the Initial Closing Date and available for ending on and including the issuance and sale of the Securities hereunder and Additional Closing Date, neither the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction nor its Subsidiary shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no material default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares mortgage, indenture or instrument under which there may be issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State by which there may be secured or evidenced any Indebtedness of the State of Delaware and Company or its Subsidiary, nor shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied there exist as of the Additional Closing DateDate an event that with the passage of time or giving notice, and assuming it were not cured, would constitute such a default. (xxxii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants at an the Additional Closing is subject to the satisfaction, at or before such each Additional Closing Date, of each of the following conditions, provided that these conditions are for each such Buyer's sole benefit and may be waived by such the Buyer at any time in its sole discretion by providing the Company and each Buyer with prior written notice thereof: (i) The Company shall have duly executed complied with the requirements of Section 1(c) and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as all of the Additional Closing Date, Notice Conditions and Effectiveness Conditions set forth in substantially the form of Exhibit F attached hereto. (iiiSection 1(d) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, satisfied as of a date within 10 days of the Additional Closing Date. (vii) The Company Articles of Amendment shall be in full force and effect and shall not have delivered to such Buyer a certificate evidencing been amended since the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Initial Closing Date. (vi) The Company shall have delivered to such Buyer , and a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware Indiana shall have been delivered to such Buyer. (iii) The Common Stock shall be authorized for quotation on the Nasdaq National Market, or a fax listed on the NYSE or pdf copy AMEX, and shall not have been suspended from trading on or delisted from such exchanges nor shall delisting or suspension by such exchanges have been threatened either (A) in writing by such exchanges or (B) by falling below the minimum listing maintenance requirements of such certificate) within ten (10) days exchanges and the Company has complied with the listing requirements of the Nasdaq National Market or the NYSE, as applicable, for the Conversion Shares and the Warrant Shares issuable upon conversion or exercise of the Additional Closing DatePreferred Shares and the related Warrants as the case may be. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viiiiv) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or the Articles of Amendment to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as such Buyer may reasonably request, including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above. (v) Such Buyer shall have received the opinions of Barnxx & Thorxxxxx xxx Snelx & Xilmxx XXX dated as of the Additional Closing Date in substantially the forms of Exhibit D, attached hereto. (vi) The Company shall have executed and delivered to such Buyer the Stock Certificates for the Additional Preferred Shares and the Additional Warrants being purchased by the Buyer at the Additional Closing. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions. (viii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 100% of the sum of (A) the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares and (B) the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Warrants (without regard to any limitations on conversion), including for such purposes the Additional Preferred Shares and related Additional Warrants to be issued at such Additional Closing. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent and shall be in effect as Exhibit H.of the Additional Closing. (ixx) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of the Additional Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Indiana within ten days of the Additional Closing Date. (xii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) the Articles of Incorporation and (C) By-laws, each as in effect at the Additional Closing. (xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (xxiv) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of DesignationsRegistration Rights Agreement) shall have been satisfied as of declared effective by the SEC on or before the date which is 80 days after the Additional Closing Share Notice Date. (xxxv) The Company shall have delivered to such Buyer the Buyers such other documents relating to the transactions contemplated by this Agreement as such Buyer the Buyers or its their counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants Notes at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares Notes (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such principal amounts as such Buyer shall request) which are being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion opinions of SmithMintz, AndersonLevin, BlountCohn, DorsettFerris, Xxxxxxxx & XxxxxxxxGlovsky and Popeo, L.L.P.P.C., the Company's outside counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F EXHIBIT D attached hereto. (iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and the Company shall have delivered cause its transfer agent to deliver a letter to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentthat effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries (other than Inksure Ltd.) in such entity's jurisdiction of formation issued by the Secretary of State of the State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Companyoffice) of each jurisdiction in which the Company conducts business and is required to so qualifybusiness, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) 10 days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such BuyerResolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G.EXHIBIT E. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit H.EXHIBIT F; provided, that Buyer shall be entitled to not consummate an Additional Closing if the Representation Certificate is not acceptable to such Buyer, in its sole discretion. Nothing herein shall be deemed a representation, warranty, covenant or agreement that the representations and warranties contained herein that are described in the Representation Certificate (as defined below) shall be true and correct as of the Additional Closing Date. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and Market, (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or and (BIII) by falling during any day during the ninety (90) Trading Days prior to the Additional Closing Date, shall not have fallen below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securitiesapplicable Additional Notes. (xii) The Registration Statement shall be effective and available for the issuance and sale No Event of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs Default (as defined in the Certificate of DesignationsNotes) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall have occurred and be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events)continuing. (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xxxiii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares Notes and the related Additional Warrants from the Company at an any Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company Initial Closing shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreementoccurred. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy complied with the requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and all of the Irrevocable Transfer Agent Instructions, Additional Sale Notice Election Conditions set forth in the form of Exhibit E attached hereto, which instructions Section 1(d) shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) satisfied as of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company (including any exceptions thereto contained in the schedules hereto) shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the such Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date), provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate, have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including an update as of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(g), 3(h), 3(n), 3(q), 3(s), 3(v), 3(aa) and 3(bb) hereto. (iv) Such Buyer shall have received (A) the opinion of Xxxxx Xxxxxx & Xxxxxx, LLP (or such other law firm as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the State of Colorado applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit K attached hereto and (B) the opinions of Xxxxx Xxxxxx & Xxxxxx, LLP, Xxxxx & Bolt, LLC, and Xxxx, Xxxxx and Xxxxxx (or such other law firms as are reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), each dated as of such Additional Closing Date, which opinions will collectively address, among other things, certain laws of the States of Kansas, Wyoming and Texas (and any other states in which the Company has properties or assets as of such Additional Closing Date) applicable to the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H.L attached hereto. (v) The Company shall have executed and delivered to such Buyer the Note Certificates and the Additional Warrants (in such denominations as such Buyer shall request) for the Additional Notes and Additional Warrants being purchased by such Buyer at such Additional Closing. (vi) The Board of Directors of the Company shall have adopted, and not rescinded or otherwise amended or modified resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer with respect to the issuance at such Additional Closing Date of the Additional Notes and Additional Warrants being purchased by the Buyers at such Additional Closing Date. (vii) As of such Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the exercise of the Warrants, at least the number of shares of Common Stock equal to 100% of the sum of (A) the aggregate number of shares issuable as of such Additional Closing Date upon exercise of all Warrants outstanding immediately prior thereto, and (B) the aggregate number of shares that may be acquired as of such Additional Closing Date upon exercise of all Additional Warrants issued and sold to all of the Buyers thereat. (viii) The Irrevocable Transfer Agent Instructions shall remain in effect as of such Additional Closing Date and the Company shall have caused the Transfer Agent to deliver a letter to the Buyers to that effect. (ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity's state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state of incorporation or organization as of a date within ten (10) days of such Additional Closing Date. (x) The Company shall have delivered to such Buyer a secretary's certificate, dated as of such Additional Closing Date, certifying as to (A) the Resolutions, (B) the Articles of Incorporation, certified as of a date within ten (10) days of such Additional Closing Date, by the Secretary of State of the State of Colorado and (C) the Bylaws, each as in effect at such Additional Closing. (xi) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five (5) days of the such Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xixiii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion: (i) The Company Articles of Amendment shall be in full force and effect and shall not have duly executed and delivered to such Buyer each of been amended since the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Initial Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer and a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware Florida shall have been delivered to such Buyer. (ii) The Common Stock shall be authorized for quotation on the Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or a fax AMEX, trading in the Common Stock shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc., NYSE or pdf copy of such certificate) within ten (10) days of AMEX on the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above. (iv) Such Buyer shall have received the opinion of the Company's counsel dated as of the Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto. (v) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Preferred Shares being purchased by such Buyer at the Additional Closing. (vi) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b)(ii) above and in a form reasonably acceptable to such Buyer (the "Resolutions"). (vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, a number of shares of Common Stock equal to at least 200% of the number of Conversion Shares issuable upon conversion of the Preferred Shares outstanding on the Additional Closing Date (after giving effect to the Preferred Shares to be issued on such Additional Closing Date and assuming all such outstanding Preferred Shares were fully convertible or exercisable on such date regardless on any limitation on the timing or amount of such conversions or exercises). (viii) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto as Exhibit H.hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (ix) The Company shall have delivered to such Buyer a letter from certificate evidencing the Companyincorporation and good standing of the Company and each Subsidiary in such corporation's transfer agent certifying state of incorporation issued by the number Secretary of shares State of Common Stock outstanding such state of incorporation as of a date within five 10 days of the Additional Closing. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within 10 days of the Additional Closing. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer a secretary's certificate, dated as the Prospectus Initial Closing Date, as to (i) the resolutions described in Section 7(a)(vii), (ii) the Articles of Incorporation and (iii) the Prospectus Supplement Bylaws, each as required thereunderin effect at the Additional Closing. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction The Company shall have been enacteddelivered to such Buyer copies of proxy agreements, enteredin a form reasonably acceptable to such Buyer, promulgated or endorsed executed by or each executive officer and director of the Company pursuant to which such persons agree to vote in any court or governmental authority favor of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreementdescribed in Section 4(j). (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior conditions to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined set forth in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of DesignationsSection 1(c) shall have been satisfied as of on or before the Additional Closing Date. (xxxv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts numbers as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and in the form attached hereto as Exhibit H.E. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (xiii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xiiv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xiiv) The Registration Statement Such Buyer shall be effective and available for have received the issuance and sale opinion of Fulbright & Xxxxxxxx L.L.P., the Company's outside counsel, dated as of the Securities hereunder and Additional Closing Date, in substantially the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunderform of Exhibit D attached hereto. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xvvi) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Series D Certificate of Designations in the form attached hereto as Exhibit A A-1 shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares Notes and the related Additional Warrants at an each of the applicable Additional Closing Closings is subject to the satisfaction, at or before such each of the Additional Closing DateDates, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares Notes (allocated in such principal amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, ) and (ii) the related Additional Warrants (allocated in such principal amounts as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion opinions of SmithMilbank, AndersonTweed, Blount, Dorsett, Xxxxxxxx Hadley & Xxxxxxxx, L.L.P.McCloy LLP, the Company's outside counsel, and Brian O'Donogxxx, xhe Xxxxxxy's General Counsel, each dated as of the Additional xxxxxxxxxx Xxxxtional Closing Date, in substantially the form of Exhibit F Exhibits H-1 and H-2 attached hereto. (iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date and the Company shall have delivered cause its transfer agent to deliver a letter to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentthat effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation incorporation and good standing of the Company its jurisdiction and each Subsidiary in such corporation's state of formation incorporation issued by the Secretary of State (or comparable office) of such jurisdictionstate of incorporation, to the extent required by Section 3(a), as of a date within 10 days of the applicable Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, State of New York as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) 10 days of the applicable Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the applicable Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such BuyerResolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the applicable Additional Closing, in the form attached hereto as Exhibit G.I. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the applicable Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit H.J. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the applicable Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the SecuritiesAdditional Notes and the Additional Warrants being purchased at the applicable Additional Closing. (xii) The Registration Statement During the period beginning on the Initial Closing Date and ending on and including the applicable Additional Closing Date, neither the Company nor any of its Subsidiaries shall have been in default under any mortgage, indenture or instrument under which there may be effective and available for the issuance and sale issued or by which there may be secured or evidenced any Indebtedness of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunderor any of its Subsidiaries. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over During the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to period beginning on the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in Date and ending on and including the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effectAdditional Closing Date, and there shall not have been amended. occurred (xviiA) The arithmetic average an Event of the VWAPs Default or (B) consummation of a Change of Control (as defined in the Certificate Notes) or a public announcement of Designations) a pending, proposed or intended Change of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately Control, which has not been abandoned or terminated prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the applicable Additional Closing Date. (xxxiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares Notes and the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the applicable Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares Notes (allocated in such principal amounts as such Buyer shall request) and related Additional Warrants (in such amounts as such Buyer shall request), in each case which are being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith(x) Mayer, AndersonBrown, Blount, Dorsett, Xxxxxxxx Xxxx & Xxxxxxxx, L.L.P.Maw LLP, the Company's ’s counsel, dated as of the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit F H-1 attached hereto, and (y) the General Counsel to the Company, dated as of the applicable Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H-2 attached hereto. (iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the applicable Additional Closing Date and the Company shall have delivered cause its transfer agent to deliver a letter to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentthat effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation incorporation and good standing of the Company its jurisdiction and each Subsidiary in such corporation’s state of formation incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, state of incorporation as of a date within 10 days of the applicable Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's ’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, State of Maryland as of a date within 10 days of the applicable Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) 10 days of the applicable Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the applicable Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such BuyerResolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the applicable Additional Closing, in the form attached hereto as Exhibit G.I. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the applicable Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the applicable Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit H.J. (ix) In the event that the Company is requiring the purchase of Additional Notes pursuant to a Company Additional Note Notice, such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the applicable Additional Closing Date, stating that the Conditions to Company Additional Note Notice set forth in Section 1.3(c)(i) have been satisfied. (x) The Company shall have delivered to such Buyer a letter from the Company's ’s transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the applicable Additional Closing Date. (xxi) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and Market, (II) shall not have been suspended, as of the applicable Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the applicable Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market for the requisite period and (III) during any day during the ninety (90) Trading Days prior to the applicable Additional Closing Date, shall not have fallen below the minimum listing maintenance requirements of the Principal Market. (xixii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder applicable Additional Notes and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunderapplicable Additional Warrants. (xiii) No litigationDuring the period beginning on the Initial Closing Date and ending on and including the applicable Additional Closing Date, statute, rule, regulation, executive order, decree, ruling or injunction neither the Company nor any of its Subsidiaries shall have been enactedin material default under any mortgage, entered, promulgated indenture or endorsed instrument under which there may be issued or by which there may be secured or in evidenced any court or governmental authority Indebtedness of competent jurisdiction the Company or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreementits Subsidiaries. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts numbers as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and in the form attached hereto as Exhibit H.E. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (xiii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xiiv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xiiv) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder ----------------------- to purchase the Additional Preferred Shares and the related Additional Warrants at an the Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion: (i) The Company Articles of Amendment shall be in full force and effect and shall not have duly executed and delivered to such Buyer each of been amended since the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Initial Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer and a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware Florida shall have been delivered to such Buyer. (ii) The Common Stock shall be authorized for quotation, listing or a fax or pdf copy of such certificate) within ten (10) days trading on the Principal Market, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares to be traded on the Principal Market shall not have been suspended by the SEC or the Principal Market at any time after the Initial Closing DateDate and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Additional Preferred Shares or exercise of the Additional Warrants, as the case may be, to be sold at the Additional Closing shall be listed or quoted upon the Principal Market. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or the Articles of Amendment to be performed, satisfied or complied with by the Company at or prior to the respective Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chairman ( so long as the Chairman is an executive officer) or the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of the Additional Closing Date regarding the representation contained in Section 3(c) above. (iv) Such Buyer shall have received the opinion of the Company's outside counsel dated as of such Additional Closing Date, in scope and substance substantially in the form of Exhibit C attached hereto hereto. --------- (v) The Company shall have executed and delivered to such Buyer the Additional Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares being purchased by such Buyer at the Additional Closing. (vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions. (vii) As of the Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares and the exercise of the Additional Warrants, a number of shares of Common Stock equal to at least (A) 200% of the number of shares of Common Stock which would be issuable upon conversion in full of the then outstanding Preferred Shares and (B) 100% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants, including for such purposes any Preferred Shares and Warrants to be issued at the Additional Closing. (viii) The Irrevocable Transfer Agent Instructions, in the form of Exhibit H.D attached hereto, shall have been delivered to and acknowledged in --------- writing by the Company's transfer agent and shall be in effect as of the Additional Closing Date. (ix) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each subsidiary in such corporation's state of incorporation issued by the Secretary of State of Florida as of a date within ten days of the Additional Closing Date. (x) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (a) the Resolutions, (b) the Articles of Incorporation and (c) Bylaws, each as in effect at the Additional Closing. (xi) During the period beginning on the Additional Share Notice Date and ending on and including the respective Additional Closing Date, the Company shall have delivered Conversion Shares upon conversion of the Preferred Shares on a timely basis as set forth in Section 2(f)(ii) of the Articles of Amendment. (xii) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten days of the Additional Closing Date. (xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xixiv) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for complied with the sale conditions of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurredSection 1(d). (xv) The Registration Statement covering the Conversion Shares issuable upon conversion of the Additional Preferred Shares to be issued pursuant to at the Initial Additional Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in declared effective by the form attached hereto as Exhibit A shall have been filed with the Secretary of State SEC within 90 days of the State Company's receipt of Delaware and the Additional Share Notice, shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average available for resale of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending Conversion Shares and Warrant Shares on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and shall cover at least (BA) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as 200% of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized which would be issuable upon conversion in full of the then outstanding Preferred Shares and (B) 100% of the number of shares of Common Stock which would be issuable upon exercise in full of the then outstanding Warrants, including for such issuancepurposes any Preferred Shares and Warrants to be issued at the Additional Closing. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xxxvi) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants at an the Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion: (i) The Company Articles of Amendment shall be in full force and effect and shall not have duly executed and delivered to such Buyer each of been amended since the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Initial Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer and a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware Florida shall have been delivered to such Buyer. (ii) The Common Stock shall be authorized for quotation on The Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or a fax or pdf copy of such certificate) within ten (10) days AMEX, trading in the Common Stock issuable upon conversion of the Additional Preferred Shares and the exercise of the related Warrants to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or AMEX shall not have been suspended by the SEC, The Nasdaq Stock Market, Inc., NYSE or AMEX and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Additional Preferred Shares and the related Warrants to be sold at such Additional Closing Dateshall be listed upon The Nasdaq SmallCap Market, the Nasdaq National Market, NYSE or AMEX. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those to the extent that any of such representations and warranties that are is already qualified by as to materiality or Material Adverse Effectin Section 3 above, in which case, such representations and warranties shall be true and correct in all respectswithout further qualification) as of the date when made and as of the respective Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the respective Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the such Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such Additional Closing Date regarding the representation contained in Section 3(c) above. (iv) Such Buyer shall have received the opinion of the Company's counsel dated as of such Additional Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit C attached hereto. (v) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Additional Preferred Shares being purchased by such Buyer at such Additional Closing. (vi) The Board of Directors of the Company shall have adopted, and shall not have amended, the Resolutions in a form reasonably acceptable to such Buyer. (vii) As of such Additional Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares and the exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion and exercise in full, as the case may be, of the then outstanding Preferred Shares and Warrants, including for such purposes any Preferred Shares and Warrants to be issued at such Additional Closing. (viii) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D attached hereto as Exhibit H.hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (ix) The Company shall have delivered to such Buyer a letter from certificate evidencing the Companyincorporation and good standing of the Company and each subsidiary in such corporation's transfer agent certifying state of incorporation issued by the number Secretary of shares State of Common Stock outstanding such state of incorporation as of a date within five 10 days of the such Additional Closing DateClosing. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus certified copies of its Articles of Incorporation and the Prospectus Supplement Bylaws, each as required thereunderin effect at such Additional Closing. (xiiixi) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over During the matters contemplated hereby which prohibits period beginning on the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force Additional Share Notice Date and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of including the Additional Closing Date, the Company shall have delivered Conversion Shares upon conversion of the Preferred Shares and Warrant Shares upon exercise of the Warrants to the Buyers on a timely basis as set forth in Section 2(f)(ii) of the Articles of Amendment and Sections 2(a) and 2(b) of the Warrants, respectively. (xxxii) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. The obligation of each Buyer hereunder to purchase the Additional Preferred Shares and the related Additional Warrants Notes at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares Notes (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such principal amounts as such Buyer shall request) which are being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P.Xxxxxxxxxx Xxxxx LLP, the Company's outside counsel, dated as of the Additional Closing Date, Date in substantially form acceptable to the form of Exhibit F attached heretoBuyer and that the Company is in good standing with its attorneys. (iii) The Irrevocable Transfer Agent Instructions shall remain in effect as of the Additional Closing Date and the Company shall have delivered cause its transfer agent to deliver a letter to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agentthat effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary Chief Executive Officer of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such BuyerResolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G.E. (viiiv) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer; Nothing herein shall be deemed a representation, warranty, covenant or agreement that the representations and warranties contained herein that are described in the form attached hereto Representation Certificate (as Exhibit H.defined below) shall be true and correct as of the Additional Closing Date. (ixvi) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (xvii) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and Market, (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, Market nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or and (BIII) by falling during any day during the ninety (90) Trading Days prior to the Additional Closing Date, shall not have fallen below the minimum listing maintenance requirements of the Principal Market. (xiviii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securitiesapplicable Additional Notes. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiiiix) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority Event of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs Default (as defined in the Certificate of DesignationsNotes) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall have occurred and be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events)continuing. (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. (xi) The Registration Statement has been filed with the SEC.

Additional Closing Date. The obligation of each Buyer hereunder to purchase Additional Notes and the Additional Preferred Shares and from the related Additional Warrants Company at an any Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's ’s sole benefit and may be waived only by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The Company Initial Closing shall have duly executed and delivered to such Buyer each of the Transaction Documents including, without limitation, (i) the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreementoccurred. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer a copy complied with the requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and all of the Irrevocable Transfer Agent Instructions, Additional Sale Notice Election Conditions set forth in the form of Exhibit E attached hereto, which instructions Section 1(d) shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) satisfied as of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G. (viii) The representations and warranties of the Company herein (including any exceptions thereto contained in the schedules hereto) shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the such Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date), provided that such representations shall be true and correct as of such Additional Closing Date giving effect to the updates required by the last sentence of this paragraph (iii) so long as there is nothing disclosed in any such updates that could, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect as determined by such Buyer, in good faith, in its sole discretion, and the Company and its Subsidiaries shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the such Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the such Additional Closing Date, to the foregoing effect (including with respect to the satisfaction of the conditions set forth in Section 7(b)(ii)) and as to such other matters as may be reasonably requested by such Buyer, including an update as of such Additional Closing Date of the representations and related schedule contained in Section 3(c) above and an update of Schedules 3(a), 3(f), 3(g), 3(h), 3(n), 3(q), 3(s), 3(w), 3(bb) and 3(cc) hereto. (iv) Such Buyer shall have received (A) the opinion of Burnet, Xxxxxxxxx & Xxxxxx LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the Province of Alberta and the federal laws of Canada, including securities laws and laws relating to withholding taxes, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit K attached hereto hereto, (B) the opinion of Goodmans LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on the Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the Province of Ontario, including securities laws, applicable to the transactions contemplated hereby, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit H.L attached hereto; (C) the opinion of Xxxxxx Xxxxxxxx & Xxxx LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the State of Michigan applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit M hereto, (D) the opinion of Xxxxxx & Xxxxxx LLP (or such other law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of the Additional Notes on such Additional Closing Date), dated as of such Additional Closing Date, which opinion will address, among other things, laws of the States of Delaware, New York and Texas applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit N attached hereto, and (E) the opinion of such law firm (or firms) as is reasonably acceptable to the Buyers being obligated to purchase at least two-thirds (2/3) of the aggregate principal amount of Additional Notes on such Additional Closing Date, dated as of such Additional Closing Date, which opinion will address among other things, to the extent applicable, laws of the States of Montana and Wyoming (as well as any other jurisdictions in which the Company has properties or assets as of such Additional Closing Date) applicable to the transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to such Buyer. (v) The Company shall have executed and delivered to such Buyer the Note Certificates and Share Certificates (in such denominations as such Buyer shall request) for the Additional Notes and the Additional Shares to be issued to such Buyer at such Additional Closing and Subscription Receipts for the Additional Shares to be issued to such Buyer on each of the dates that are six (6) months, 12 months and 18 months after such Additional Closing Date. (vi) The Boards of Directors of the Company and its Subsidiaries shall have adopted, and not rescinded or otherwise amended or modified resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer with respect to the issuance at such Additional Closing Date of the Additional Notes and the related Shares being purchased by the Buyers at such Additional Closing Date (the “Additional Closing Resolutions”). (vii) The Irrevocable Transfer Agent Instructions shall remain in effect as of such Additional Closing Date, and the Company shall have caused the Transfer Agent to deliver a letter to the Buyers to that effect. (viii) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity’s state or other jurisdiction of incorporation or organization issued by the Secretary of State (or other applicable authority) of such state of incorporation or organization as of a date within ten (10) days of such Additional Closing Date. (ix) The Company shall have delivered to such Buyer a secretary’s certificate, dated as of such Additional Closing Date, certifying as to (A) the Additional Closing Resolutions, (B) the Articles of the Corporation, certified as of a date within ten (10) days of such Additional Closing Date, by the Alberta Registrar of Corporations, (C) the Bylaws, each as in effect at such Additional Closing, (D) the organizational documents of each Subsidiary, certified as of a date within ten (10) days of such Additional Closing by the applicable governmental authority of the applicable jurisdiction, and (E) the by-laws, limited partnership agreement or limited liability company agreement of each Subsidiary, as the case may be. (x) The Company shall have made all filings under all applicable U.S. and Canadian federal and state, provincial and territorial securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xi) The Company shall have delivered to such Buyer a letter from the Company's ’s transfer agent certifying the number of shares of Common Stock Shares outstanding as of a date within five (5) days of the such Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Additional Closing Date, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, as of the Additional Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xixii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in the form attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amended. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company its Subsidiaries shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.

Additional Closing Date. (i) The obligation of each Buyer Buyers hereunder to purchase the Additional Preferred Shares and at the related Additional Warrants at an Additional Closing is subject to the satisfaction, at or before such the Additional Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit of the Buyers and may be waived by such Buyer a Buyer, with respect to it, at any time in its sole discretion by providing the Company with prior written notice thereofdiscretion: (i) A. The Company Certificate of Amendment shall be in full force and effect and shall not have duly executed and delivered to such Buyer each been amended, without the knowledge or consent of the Transaction Documents includingBuyers, without limitation, (i) since the Additional Preferred Shares (allocated in such amounts as such Buyer shall request), being purchased by such Buyer at the Additional Closing pursuant to this Agreement, and (ii) the related Additional Warrants (allocated in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement. (ii) Such Buyer shall have received the opinion of Smith, Anderson, Blount, Dorsett, Xxxxxxxx & Xxxxxxxx, L.L.P., the Company's counsel, dated as of the Additional Initial Closing Date, in substantially the form of Exhibit F attached hereto. (iii) The Company shall have delivered to such Buyer and a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit E attached hereto, which instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent. (iv) The Company shall have delivered to such Buyer a certificate evidencing the formation and good standing of the Company its jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office or a bring-down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within 10 days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as thereof certified by the Secretary of State of the State of Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Additional Closing DateNew York shall have been delivered to Buyers. (vii) B. The Company Common Stock shall be authorized for quotation on AMEX, and shall not have delivered to been suspended from trading on or delisted from such Buyer a certificatemarket, executed nor shall delisting or suspension by the Secretary of the Company and dated as of the Additional Closing Date, as to (i) the resolutions consistent with Section 3(d) as adopted by the Company's Board of Directors such market have been threatened in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closing, in the form attached hereto as Exhibit G.writing. (viii) C. The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, date which shall be true and correct as of such specified that date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents or the Certificate of Amendment to be performed, satisfied or complied with by the Company at or prior to the Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Additional Closing Date, to the foregoing effect in the form attached hereto as Exhibit H. (ix) The Company which also shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Additional Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, include an update as of the Additional Closing DateDate regarding the representation contained in Section 3(c) above. D. Buyers shall have received the opinion of Xxxxxxx Xxxxxx & Xxxxxxxx LLP, by the SEC or the Principal Market from trading on the Principal Market, nor shall suspension by the SEC or the Principal Market have been threatened, except as disclosed in the Current Report on Form 8-K filed by the Company on October 14, 2011, dated as of the Additional Closing Date, either (A) Date in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xii) The Registration Statement shall be effective and available for the issuance and sale of the Securities hereunder and the Company shall have delivered to such Buyer the Prospectus and the Prospectus Supplement as required thereunder. (xiii) No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (xiv) Each of the Lock-Up Agreements shall be in full force and effect, enforceable against each of the parties set forth in Exhibit C hereto in accordance with their terms, and no default under any such Lock-Up Agreement shall have occurred. (xv) The Preferred Shares issued pursuant to the Initial Closing shall have been converted or redeemed in full. (xvi) Certificate of Designations in substantially the form of Exhibit V attached hereto as Exhibit A shall have been filed with the Secretary of State of the State of Delaware and shall be in full force and effect, and shall not have been amendedhereto. (xvii) The arithmetic average of the VWAPs (as defined in the Certificate of Designations) of the Common Stock during the ten (10) consecutive Trading Day period ending on the Trading Day immediately prior to the Additional Closing Date shall be not less than $1.15 (as adjusted for stock splits, stock dividends, reverse stock splits and similar events). (xviii) The Company shall be able to issue all shares of Common Stock underlying (i) the Additional Preferred Shares (assuming, for purposes of this closing condition, that such Additional Preferred Shares are convertible into Common Stock at 80% of the lower of (A) the VWAP (as defined in the Certificate of Designations) of the Common Stock on the Trading Day immediately preceding the Additional Closing Date and (B) the Company Conversion Price (as defined in the Certificate of Designations, but calculated as of the Trading Day immediately preceding the Additional Closing Date instead of the Installment Settlement Date)) and (ii) the Warrants without (x) breaching, or otherwise being limited by, the Exchange Cap (as defined in the Certificate of Designations), to the extent then applicable, or (y) triggering a failure by the Company to have a sufficient number of shares of Common Stock authorized for such issuance. (xix) All Equity Conditions (as defined in the Certificate of Designations) shall have been satisfied as of the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request.