Common use of Additional Closing Clause in Contracts

Additional Closing. To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall be permitted, at any time during the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreement.

Additional Closing. To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then the Company The obligation of each Buyer hereunder to purchase Additional Notes at any Additional Closing shall be permittedsubject to the satisfaction (or waiver), 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 during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the First Tranche ClosingTransaction Documents and (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), to offer and sell 2015 Notes equal to being purchased by such Buyer at the Remaining Financing Amount Closing pursuant to this Agreement to purchasers that Agreement. (ii) The Initial Closing shall have occurred. (iii) Such Buyer shall have received the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectivelyopinion of Xxxxx Day, the “Company’s outside counsel, dated as of the Additional Lenders”). Closing Date, in form and substance reasonably satisfactory to such Buyer. (iv) The closings Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent. (v) The Company shall have delivered to such sales shall be referred to herein as Buyer a certificate evidencing the “Additional Closings” formation and shall occur on a date determined by good standing of the Company and each Additional Lender, provided such date is prior to the end of the sixty Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (60or comparable office) day period after of such jurisdiction, as of a date within ten (10) calendar days of the First Tranche Closing. All sales made Additional Closing Date. (vi) 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(b) as adopted by the Company’s and each of the Guarantors’ respective boards of directors (or other applicable governing body), (ii) the certificate of incorporation of the Company and each of the Guarantors (or other applicable charter document) and (iii) the bylaws of the Company and each of the Guarantors (or limited liability company agreement or other applicable document), each as in effect at the Additional Closings Closing, such certificate substantially in the form attached hereto as Exhibit G. (avii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth shall be true and correct in Section 3 hereof all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall speak be true and correct in all respects subject to such qualification) as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional ClosingClosing 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). The Schedule Such Buyer shall have received a certificate, executed by the principal executive officer or the principal financial officer of Lenders the Company, dated as of the Additional Closing Date, to the foregoing effect and as to such other matters as may be amended reasonably requested by such Buyer substantially in the form attached hereto as Exhibit H. (viii) The Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company without or the consent Guarantors at or prior to the Additional Closing Date (except for those covenants, agreements or conditions as to which the Company is required to perform, satisfy or comply in all material respects, as to which the Company shall have performed, satisfied or complied in all material respects). (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 (5) Business Days of the Lenders to include any Additional Lenders in Closing Date. (x) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and sale of the other agreements and documents contemplated herein. The Additional Closings Securities. (xi) Such Buyer shall also take place at have received the offices Company’s wire instructions on Company letterhead duly executed by an authorized officer of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementCompany.

Additional Closing. To i. The obligations of KiOR to sell the extent thatNotes, and of the Purchasers to purchase the Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following conditions: (a) The notifications of the Purchasers and KiOR pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated; and (b) Consummation of the transactions contemplated hereby or by the Transaction Documents shall not have been restrained, enjoined or otherwise prohibited or made illegal by, or conditioned upon the First Tranche receipt of any approvals or consents from Governmental Authorities under, any applicable law. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before any Additional Closing, of each of the First Tranche Financing Amount is less than following conditions, unless otherwise waived by KiOR: (a) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the Financing Amountapplicable amount set forth opposite such Purchaser’s name under the heading “Additional Closing” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the Additional Closing. The Additional Closing shall not be deemed to occur, then and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Purchase Price indicated thereon; and (b) each of the representations and warranties of each Purchaser in this Agreement and the other Transaction Documents shall be true and correct on the date of the Additional Closing, and the occurrence of such Additional Closing shall be deemed to be a representation and warranty of each Purchaser that such representations and warranties are true and correct. iii. The obligations of each Purchaser to purchase the Notes are subject to the fulfillment, on or before each Additional Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Required Purchasers shall have determined that the Company shall be permitted, at any time during have satisfied the sixty applicable Milestone (60) day period following as determined in the First Tranche Closing, to offer sole discretion of (and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that satisfaction of) the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”Required Purchasers). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, ; (b) the representations and warranties of the Company set forth in Section 3 hereof 4 of this Agreement shall speak be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of such Additional Closing, and no Default or Event of Default shall have occurred and be continuing as of the First Tranche Closing and date of such Additional Closing; and (c) the representations Company shall have performed and warranties of the Additional Lenders complied with all covenants, agreements, obligations and conditions contained in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may this Agreement that are required to be amended performed or complied with by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by on or before such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementClosing.

Additional Closing. To (i) Between the extent that180th day and the 190th day following the Closing Date, upon each of the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then Purchasers and the Company shall be permitted, at any time during have the sixty (60) day period following the First Tranche Closing, right to offer and sell 2015 Notes equal deliver a written notice to the Remaining other (the "Additional Financing Notice") requiring such other party to either sell or buy (severally and not jointly), as the case may be, the Additional Securities for the Additional Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”)indicated therein. The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at At the Additional Closings Closing (aas defined herein) shall be made on each Purchaser shall, severally and not jointly, purchase (subject to the terms and conditions set forth in this Agreement, (bherein) the representations and warranties such portion of Additional Securities as equals such Purchaser's pro-rata portion of the Company set forth in Section 3 hereof shall speak as Initial Securities issued and sold at the Closing. The closing of the First Tranche Closing purchase and (c) the representations and warranties sale of the Additional Lenders in Section 5 hereof shall speak as of Securities (the "Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings ") shall also take place at the offices of Xxxxxx & Xxxxxxx LLP Robixxxx Xxxvxxxxx,0000 Avenue of the Americas, New Xxxx, Xxx Xxxx 00000, xx the fifth (5th) Business Day after the Additional Financing Notice is delivered by the Purchasers or at the Company, as the case may be, or on such other date as otherwise agreed to by the parties hereto provided, that in no case shall the Additional Closing take place unless and at until all of the conditions listed in Section 5 of this letter shall have been satisfied by the Company or waived by the Purchasers (it being understood that each Purchaser may elect to waive or enforce such time conditions in its own discretion). The date of the Additional Closing is hereinafter referred to as the Company and "Additional Closing Date." Notwithstanding anything to the contrary contained in this letter, each Purchaser may, prior to the Additional Lender may agree in writing. Any notes sold pursuant Closing Date, designate an Affiliate thereof to this Section 2.2 shall be deemed acquire all or any portion of the Additional Securities to be “2015 Notes”, for all purposes under this Agreement and any sold on the Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementClosing Date.

Additional Closing. To Whether or not Seller has then begun to, or ever begins to cure one or more Asserted Defects (and whether or not Seller has elected to proceed under Section 7.5 or Section 7.6 below with respect to all Properties, or one or more Asserted Defects) Seller may postpone the extent that, upon the First Tranche Closing, with respect to any of the First Tranche Financing Amount Properties as to which Buyer has raised an Asserted Defect, by designating an additional Closing Date or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as to such Properties, provided, however, if Seller is less seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for Seller to cure said interest and the resulting additional Closing Date shall be extended so long as Seller pursues any legal action, but not longer than nine (9) months after the Financing AmountClosing Date, unless Xxxxx agrees in writing to extend the deadline for any resulting additional Closing Date. Subject to the foregoing sentence, the additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into Seller, other documentation reasonably acceptable to Buyer which vests title into Seller, or any final non-appealable decision or settlement which vests title into Seller. If Seller elects to postpone the Closing with respect to such Properties, then the Company Purchase Price paid at the initial Closing for the remainder of the Properties shall be permittedreduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Only a portion of the Deposit shall be applied as provided in Section 9.3 to the portion of the Purchase Price paid at the initial Closing if it occurs, at any time during such portion being the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes percentage equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that unadjusted Purchase Price paid at the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined initial Closing divided by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company unadjusted Purchase Price set forth in Section 3 hereof 3.1. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Seller shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders still have no obligation to include commence to cure or cure any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementAsserted Defects.

Additional Closing. To (a) At any time following the extent that, upon Initial Closing but prior to the First Tranche Subsequent Closing, the First Tranche Financing Amount is less than Company may sell up to an aggregate of 500,000 shares of Series A Preferred Stock (the Financing Amount, then the Company shall be permitted“Additional Shares”), at any time during the sixty (60) day period following the First Tranche Closinga purchase price of $1.00 per share, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon one or more investor(s) (each such holder, an “Additional LenderInvestor” and collectively, the “Additional LendersInvestors”) acceptable to: (i) a majority of the Company’s board of directors; and (ii) the Majority Investors. (b) Each closing of the purchase, sale and issuance of Additional Shares to the Additional Investor(s) (each, an “Additional Closing”) shall take place at the offices of the Company at 10:00 a.m. on such date as the Company and the Additional Investor(s) participating in such Additional Closing may agree either orally or in writing (the “Additional Closing Date”). The closings At each Additional Closing, the Company shall deliver to each Additional Investor participating in the Additional Closing a certificate in such Additional Investor’s name representing the shares of Series A Preferred Stock purchased by such sales Additional Investor at such Additional Closing, against payment of the purchase price as provided in Section 1.2. Notwithstanding anything to the contrary set forth herein, this Agreement, including, without limitation, Exhibit A hereto, may be amended by the Company without the consent of any Investors to: (i) reflect the issuance of Additional Shares at each Additional Closing; and (ii) upon the execution by an Additional Investor of a counterpart signature page hereto, to include such Additional Investor on Exhibit A (a) under the heading “Additional Closing” reflecting the number of shares of Series A Preferred Stock purchased by such Additional Investor at each Additional Closing and (b) under the heading “Subsequent Closing” to reflect that each Additional Investor has committed to purchase in the Subsequent Closing a number of shares of Series A Preferred Stock equal to the number of Additional Shares purchased by such Additional Investor at such Additional Closing. Upon the execution by such Additional Investor of a counterpart signature page hereto, such Additional Investor shall be referred deemed to herein as the be an “Investor” for all purposes under this Agreement. (c) In connection with any Additional Closings” and shall occur on a date determined by Closing, the Company and each Additional Lender, provided Investor acknowledge and agree that: (i) the purchase and sale of Additional Shares at such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) Closing shall be made on the terms and conditions set forth in this Agreement, ; (bii) the representations and warranties of the Company set forth in Section 3 hereof 2 (and the Schedule of Exceptions (as defined below)) shall speak only as of the First Tranche Closing Initial Closing, and the Company shall have no obligation to update any such representations and warranties (or exceptions) as of the Additional Closing; and (ciii) the representations and warranties of the each Additional Lenders Investor in Section 5 hereof 3 shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementClosing Date.

Additional Closing. To An Additional Closing contemplated under Section 2.3 shall take place at 10 a.m. (China standard time) at the extent thatoffice of O’Melveny & Xxxxx LLP Shanghai Office, upon the First Tranche Closingsituated at 00/X Xxxxx Xxx, the First Tranche Financing Amount is less Xxxxx 66, 1266 Nanjing Road West, Shanghai, PRC as soon as reasonably possible and in any event no later than the Financing Amount, then the Company shall be permitted, at any time during the sixty fifth (605th) day period following the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties receipt of the Additional Lenders in Section 5 hereof shall speak as of Closing Notice for such Additional Closing from the Additional Closing. The Schedule of Lenders may be amended Investor by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP Company, or at such other time and place and at such time as the Company and each Additional Lender the Investor may mutually agree in writing. Any notes sold writing (such date being an “Additional Closing Date”), provided that the obligations of the Investor to consummate such Additional Closing under this Section 3.2 are subject to the fulfillment of the following conditions: (a) The Investor shall have each of the items required to be delivered by the Company pursuant to Section 3.3(c). (b) The Closing shall have been duly consummated pursuant to this Section 2.2 Agreement. (c) Each Warrantor shall be deemed have performed and complied with all obligations and conditions contained in the Transaction Documents to which it is a party, that are required to be “2015 Notes”performed or complied with by each of them following the Closing. (d) Since the date hereof, for all purposes there shall have been no Material Adverse Effect. (e) Since the Closing Date, there shall have been no Event of Default (as defined under this Agreement the Bond Conditions and the Special Bond Conditions) with respect to the Bond or any Additional Lenders thereof Special Bond. (f) No Governmental Authority of competent jurisdiction shall be deemed to be “Lenders” for all purposes have enacted, issued, promulgated, enforced or entered any Law (whether temporary, preliminary or permanent) which (i) is in effect, and (ii) has the effect of making the transactions contemplated by the Transaction Documents illegal or otherwise prohibiting consummation of the transactions contemplated hereby. (g) The security interest contemplated under this Agreementthe Share Charge shall have come into full force and effect.

Additional Closing. To If the extent that, upon aggregate principal amount of the Notes purchased at the First Tranche Closing, the First Tranche Financing Amount Closing is less than the Financing Amount$18,372,132, then the Company shall be permitted, at any time during on or before the sixty earlier of the consummation of a Qualified Financing (as defined in the Notes), the filing of a public registration statement with respect to an IPO (as defined in the Notes), Liquidation Event or Deemed Liquidation Event (each as defined in the Notes), or July 31, 2018 (the “Outside Date”), or such later date as is approved by the Investors holding at least 60) day period following % of the then-outstanding and unpaid principal and interest under all Notes (the “Requisite Investors”), the Company may sell up to the balance of the authorized Notes not sold at the First Tranche Closing in one additional closing (the “Additional Closing” and each of the First Closing and the Additional Closing, a “Closing”) to offer and sell 2015 Notes equal Chengdu Xxxxx Genomics Technology Co., Ltd. or its Affiliate (“Xxxxx”), up to the Remaining Financing Amount pursuant amount set forth on EXHIBIT C attached hereto. In addition to the other closing conditions set forth in this Agreement, the Additional Closing with Xxxxx shall be subject to (i) Xxxxx’x receipt of internal approval and authorization for the transactions contemplated under the Purchase Agreement, (ii) Xxxxx’x receipt of any and all approvals or notices of record filing from the Ministry of Commerce, State Administration of Foreign Exchange and the National Development and Reform Commission of China, relating to the transactions contemplated under the Purchase Agreement, and (iii) no material adverse effect relating to the Company’s business, properties, assets, or operations, taken as a whole, existing at the time of the Additional Closing with Xxxxx. Upon signing a counterpart signature page to this Agreement and its purchase of a Note at the Additional Closing, Xxxxx shall become a party to purchasers that this Agreement and shall be deemed to be an “Investor” for all purposes under this Agreement, and the Schedule of Investors attached hereto shall be amended to reflect the amount Xxxxx has agreed to lend the Company and Requisite Lenders mutually agree upon (each such holder, an in the column entitled “Additional LenderClosing Loan Amount” (such amount and collectively, the First Closing Investors’ “Additional LendersFirst Closing Loan Amount,” a “Loan Amount”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales loan made at the Additional Closings (a) Closing shall be made on the terms and conditions set forth in this Agreement, (b) and the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders Investors set forth in Section 5 4 hereof shall speak as of the date of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold Note issued pursuant to this Section 2.2 1(b) shall be deemed to be a “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “LendersNote” for all purposes under this Agreement. On the Additional Closing Date (as defined below), Xxxxx shall lend to the Company at the Additional Closing the amount set forth opposite its name under the column entitled “Additional Closing Loan Amount” on the Schedule of Investors attached hereto (as may be amended as described above) against the issuance and delivery by the Company of a Note for such Loan Amount.” 4. Section 2(a)

Additional Closing. To The obligation of each Buyer hereunder to purchase the extent thatAdditional Common Shares and the related Additional Warrants at the Additional Closing is subject to the satisfaction, upon at or before the First Tranche ClosingAdditional Closing Date, of each of the First Tranche Financing Amount is less than the Financing Amountfollowing conditions, then the Company shall provided that these conditions are for each Buyer’s sole benefit and may be permitted, waived by such Buyer at any time during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period following The Company shall have executed and delivered to such Buyer (i) each of the First Tranche Closing, to offer Transaction Documents and sell 2015 Notes equal to (ii) the Remaining Financing Amount Additional Common Shares (in such amounts as such Buyer shall request) and the related Additional Warrants (in such amounts as such Buyer shall request) being purchased by such Buyer at the Additional Closing pursuant to this Agreement to purchasers that Agreement. (ii) Such Buyer shall have received (A) the Company and Requisite Lenders mutually agree upon (each such holderopinion of Xxxxxx X. Xxxxxxxxx, an “Additional Lender” and collectivelyP.C., the “Company’s outside U.S. counsel, dated as of the Additional Lenders”). Closing Date, in substantially the form of Exhibit C attached hereto and (B) the opinion of Harneys Westwood & Riegels, the Company’s British Virgin Islands outside counsel, dated as of the Additional Closing Date, in a form reasonably acceptable to the Buyers. (iii) The closings Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided of its United States operating Subsidiaries in such corporation’s jurisdiction of incorporation issued by the Secretary of State (or comparable office) of such jurisdiction of incorporation as of a date is prior to the end within ten (10) days of the sixty Additional Closing Date. (60iv) day period after The Company shall have delivered to such Buyer a certificate evidencing the First Tranche Closing. All sales made Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Additional Closing Date. (v) The Common Stock (I) shall be 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, 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. (vi) The Company shall have delivered to such Buyer a certified copy of the Memorandum of Association as certified by the Secretary of State (or comparable office) of the jurisdiction of incorporation within 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(b) as adopted by the Company’s Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Memorandum of Association and (iii) the Articles of Association, each as in effect at the Additional Closings Closing, in the form attached hereto as Exhibit D. (aviii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth in Section 3 hereof shall speak be true and correct as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule Closing Date as though made at that time (except for representations and warranties that speak as of Lenders may a specific date, which shall be amended true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company without at or prior to the consent Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Lenders Company, dated as of the Additional Closing Date, to include any Additional Lenders the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the Additional Closings upon form attached hereto as Exhibit E. (ix) The Company shall have delivered to such Buyer a letter from the execution by such Additional Lender Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a counterpart signature page hereto and date within five days of the other agreements Additional Closing Date. (x) The Company shall have obtained all governmental, regulatory or third party consents and documents contemplated herein. approvals, if any, necessary for the sale of the Common Shares and the Warrants. (xi) The Additional Closings Company shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at have delivered to such Buyer such other place and at such time as documents relating to the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under transactions contemplated by this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementas such Buyer or its counsel may reasonably request.

Additional Closing. To On or before the extent thatthirtieth (30th) day following the Initial Closing Date, upon the First Tranche Company may sell and issue at an additional closing (the “Additional Closing” and together with the Initial Closing, a “Closing”) up to the First Tranche Financing Amount is balance of the authorized number of shares of Series CC Preferred Stock not purchased at the Initial Closing at a price per share of not less than the Financing AmountPer Share Purchase Price, then to one or more of the Company Company’s existing stockholders, including existing stockholders that purchase shares of Series CC Preferred Stock at the Initial Closing. Any such sale and issuance in the Additional Closing shall be permitted, at any time during the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the same terms and conditions set forth in as those contained herein, and such persons or entities shall, upon execution and delivery of the relevant signature pages, become parties to, and be bound by, this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings Closing shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or LLP, 1800 Mercantile Bank and Trust Building, 0 Xxxxxxx Xxxxx, Baltimore, Maryland, at such other place date and at such time as is mutually agreed upon by the Company and each the additional purchasers acquiring in the aggregate more than half of the shares of Series CC Preferred Stock being sold at the Additional Lender may agree Closing (the “Additional Closing Date”, and together with the Initial Closing Date, a “Closing Date”). Each purchaser participating in writing. Any notes sold pursuant such Additional Closing shall execute a counterpart signature to this Section 2.2 Agreement and shall become a party to the Stockholders Agreement and the Registration Rights Agreement, at which time such purchaser shall be treated as a “Purchaser” for purposes of this Agreement and the stock purchased by such purchaser shall be deemed to be “2015 Notes”, for all purposes sold under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under of this Agreement, the Stockholders Agreement and the Registration Rights Agreement; provided, that Purchasers that participate in the Initial Closing shall not be required to execute such agreements again.

Additional Closing. To Whether or not a Seller has then begun to, or ever begins to cure one or more Asserted Defects (and whether or not a Seller has elected to proceed under Section 7.5 or Section 7.6 below with respect to all Properties, or one or more Asserted Defects) any Seller may postpone the extent that, upon the First Tranche Closing, with respect to any of the First Tranche Financing Amount Properties in which such Seller owns an interest as to which Buyer has raised an Asserted Defect, by designating an additional Closing Date or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as to such Properties, provided, however, if such Seller is less seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for such Seller to cure said interest and the resulting additional Closing Date shall be extended for no more than 36 months so long as such Seller actively pursues any legal action. The additional Closing Date for a Property that was the Financing Amountsubject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into such Seller, other documentation acceptable to Buyer which vests title into such Seller, or any final non-appealable decision or settlement which vests title into such Seller. If such Seller elects to postpone the Closing with respect to such Properties, then the Company Purchase Price paid at the initial Closing for the remainder of the Properties shall be permitted, reduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Notwithstanding any time during the sixty (60) day period following the First Tranche Closing, such election to offer and sell 2015 Notes equal postpone Closing with respect to the Remaining Financing Amount pursuant affected Properties, Sellers shall still have no obligation to this Agreement commence to purchasers that the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include cure or cure any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementAsserted Defects.

Additional Closing. To Whether or not Seller has then begun to, or ever begins to cure one or more Asserted Defects (and whether or not Seller has elected to proceed under Section 7.5 or Section 7.6 below with respect to all Properties, or one or more Asserted Defects) Seller may postpone the extent that, upon the First Tranche Closing, with respect to any of the First Tranche Financing Amount Properties as to which Buyer has raised an Asserted Defect, by designating an additional Closing Date or Closing Dates, which shall not be later than six (6) months after the initial Closing Date designated in Section 9.1, for the Closing as to such Properties, provided, however, if Seller is less seeking to cure the Asserted Defect through any legal action against the party claiming or clouding the title to any interest, the period for Seller to cure said interest and the resulting additional Closing Date shall be extended so long as Seller pursues any legal action, but not longer than nine (9) months after the Financing AmountClosing Date, unless Buyer agrees in writing to extend the deadline for any resulting additional Closing Date. Subject to the foregoing sentence, the additional Closing Date for a Property that was the subject of litigation to cure title shall be held within two (2) weeks of Seller’s notice to Buyer of any conveyance of the Property into Seller, other documentation reasonably acceptable to Buyer which vests title into Seller, or any final non-appealable decision or settlement which vests title into Seller. If Seller elects to postpone the Closing with respect to such Properties, then the Company Purchase Price paid at the initial Closing for the remainder of the Properties shall be permittedreduced by the Allocated Amount allocated to said Property and the amount of such reduction shall instead be paid on the additional Closing Date at the Closing for such Properties. Only a portion of the Deposit shall be applied as provided in Section 9.3 to the portion of the Purchase Price paid at the initial Closing if it occurs, at any time during such portion being the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes percentage equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that unadjusted Purchase Price paid at the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined initial Closing divided by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company unadjusted Purchase Price set forth in Section 3 hereof 3.1. Notwithstanding any such election to postpone Closing with respect to the affected Properties, Seller shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders still have no obligation to include commence to cure or cure any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementAsserted Defects.

Additional Closing. At Buyer's sole and absolute discretion, exercisable for a period of 30 days immediately subsequent to its receipt from Sellers of an Additional Closing Notice (as defined below), Buyer may purchase any or all of the Simulators listed on Schedule 4.14 together with all Leases and other assets relating thereto, including without limitation the Leases listed on Schedule 4.14 (the "Additional Assets"), and identified in such Additional Closing Notice for the cash purchase price indicated on such Schedule for such Simulators. On the date of this Agreement Buyer shall pay a $528,000 non-refundable deposit (the "Deposit") toward the cash purchase price of the Additional Assets in immediately available funds to PL. The Deposit shall be applied toward the cash purchase price of any or all of the Additional Assets which Buyer elects to purchase and Buyer shall pay the balance, if any, of the cash purchase price for such Additional Assets upon delivery by Sellers of such Additional Assets. Buyer acknowledges and agrees that it shall forfeit any portion of the Deposit that is not so applied towards the purchase of the Additional Assets. Upon the consummation of any such purchase, IMTS shall issue an additional warrant to Buyer, in the same form as the Warrant, exercisable for a number of shares of Common Stock equal to (i) the sum of the (x) the aggregate cash purchase price for the Additional Assets purchased minus (y) the amount, if any, of the Deposit applied to the purchase of such Additional Assets times (ii) 2.5. Sellers shall deliver an Additional Closing Notice with respect to each Simulator listed on Schedule 4.14 no later than 10 days prior the installation of such Simulator and, in any event, no later than May 31, 2005, and Sellers acknowledge that any failure to do so would result in a loss to Buyer subject to indemnification under Section 4 in an amount equal to Buyer's reasonable anticipated profits from the Additional Assets. To the extent thatthat Buyer elects not to purchase any Additional Assets, upon and Sellers enter into more favorable Leases (by amendment or otherwise) with respect thereto prior to the First Tranche Closingstated termination of the Leases described in any Additional Closing Notice or Notices, the First Tranche Financing Amount is less than the Financing Amount, then the Company Sellers shall be permitted, at any time during the sixty (60) day period following the First Tranche Closing, promptly pay to offer and sell 2015 Notes Buyer an amount equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon (each present value of any such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth favorable difference in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementeconomic terms.

Additional Closing. To Subject to Section 1.3, if the extent thatCompany grants the underwriters an over-allotment option to purchase additional ADSs representing Ordinary Shares (the “Optional Shares”), then: (i) if the underwriters purchase any such Optional Shares, and, solely as a result of (x) the issuance of ADSs by the Company in the Offering in excess of 9,000,000 ADSs; or (y) the issuance of the Optional Shares (the “Greenshoe Offering”); or (z) a combination of (x) and (y), the Purchaser’s shareholding of the Company’s total outstanding Ordinary Shares will be below 8% of the Company’s total outstanding Ordinary Shares upon the First Tranche Closing, closing of the First Tranche Financing Amount is less than the Financing AmountGreenshoe Offering, then the Company shall be permitted, at any time during additional closing (the sixty (60“Additional Closing”) day period following of the First Tranche Closing, to offer sale and sell 2015 Notes equal to the Remaining Financing Amount purchase of additional Ordinary Shares pursuant to this Agreement to purchasers that Section 1.1 shall take place concurrently with the closing of the Greenshoe Offering at the same office for the closing of the Greenshoe Offering or at such other place as the Company and Requisite Lenders the Purchaser may mutually agree agree. The Company shall promptly issue a notice to the Purchaser if the underwriters exercise the over-allotment option, and the Purchaser shall promptly issue a notice to the Company with respect to the Purchaser’s shareholding in the Company. The total number of additional Ordinary Shares that the Purchaser will purchase at the Additional Closing shall be such that, together with the Ordinary Shares (whether or not represented by ADSs) the Purchaser has acquired, will result in the Purchaser holding 8% of the Company’s total outstanding Ordinary Shares upon the Additional Closing. (each ii) if the underwriters do not exercise such holderoption, an and, solely as a result of the issuance of ADSs by the Company in the Offering in excess of 9,000,000 ADSs, the Purchaser’s shareholding of the Company’s total outstanding Ordinary Shares will be below 8% of the Company’s total outstanding Ordinary Shares on the 30th day following the Initial Closing, then the Additional Closing of the sale and purchase of the Ordinary Shares pursuant to Section 1.1 shall take place on such 30th day following the Initial Closing at the same office for the Initial Closing or at such other place as the Company and the Purchaser may mutually agree. The Purchaser shall issue a notice to the Company with respect to the Purchaser’s shareholding in the Company as of such 30th day following the Initial Closing. The total number of additional Ordinary Shares that the Purchaser will purchase at the Additional Closing shall be such that, together with the Ordinary Shares (whether or not represented by ADSs) the Purchaser has acquired, will result in the Purchaser holding 8% of the Company’s total outstanding Ordinary Shares upon the Additional Closing. (iii) The Additional Closing and the Initial Closing are referred to herein collectively as the “Additional LenderClosings” and collectively, individually a “Closing.” The date and time of the “Additional Lenders”). The closings of such sales shall be Closing are referred to herein as the “Additional ClosingsClosing Date.” The Additional Closing Date and the Initial Closing Date are referred to herein collectively as the “Closing Dates” and individually as a “Closing Date.” For the avoidance of doubt and solely for the purpose of shareholding calculation in this Subsection 1.2(b), the Company’s total outstanding Ordinary Shares shall occur on a date determined by exclude Ordinary Shares issuable upon the Company and each Additional Lender, provided such date is prior to the end exercise of the sixty (60) day period outstanding stock options after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties applicable date of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementcalculation.

Additional Closing. To The obligation of each Buyer hereunder to purchase the extent thatPreferred Shares at the Additional Closing is subject to the satisfaction, upon at or before the First Tranche ClosingAdditional Closing Date, of each of the First Tranche Financing Amount is less than the Financing Amountfollowing conditions, then the Company shall provided that these conditions are for each Buyer’s sole benefit and may be permitted, waived by such Buyer at any time during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period following The Company shall have duly executed and delivered to such Buyer (A) each of the First Tranche Closing, to offer Transaction Documents and sell 2015 Notes equal to (B) the Remaining Financing Amount Preferred Shares (in such numbers as is set forth across from such Buyer’s name in column (4) of the Schedule of Buyers) being purchased by such Buyer at the Additional Closing pursuant to this Agreement Agreement. (ii) The Company shall have delivered to purchasers that such Buyer the Company and Requisite Lenders mutually agree upon (each such holderExcess Note Amount, an “Additional Lender” and collectivelyif any, of the “Additional Lenders”). The closings Notes of such sales Buyer being exchanged in accordance herewith. (iii) Such Buyer shall be referred have received the opinion of Xxxxxxxxx Xxxxxxx, P.A. the Company’s outside counsel, dated as of the Additional Closing Date, in substantially the form of Exhibit F-3 attached hereto, and the opinion of Akerman Senterfitt, in substantially the form of Exhibit F-4 attached hereto. (iv) The Company shall have delivered to herein as such Buyer a copy of the “Additional Closings” 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. (v) The Company shall occur on have delivered to such Buyer a date determined by certificate evidencing the formation and good standing of the Company and each Additional Lender, provided of its Material Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or equivalent) of such jurisdiction of formation as of a date is prior to the end within ten (10) days of the sixty Additional Closing Date. (60vi) day period after The Company shall have delivered to such Buyer a certificate evidencing the First Tranche Closing. All sales made Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, as of a date within ten (10) days of the Additional Closing Date. (vii) The Company shall have delivered to such Buyer a certified copy of the Articles of Incorporation as certified by the Secretary of State of the State of Florida within ten (10) days of the Additional Closing Date. (viii) 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(b) as adopted by the Company’s board of directors in a form reasonably acceptable to such Buyer, (ii) the Articles of Incorporation and (iii) the Bylaws, each as in effect at the Additional Closings Closing, in the form attached hereto as Exhibit G. (aix) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth in Section 3 hereof shall speak be true and correct as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule Closing Date as though made at that time (except for representations and warranties that speak as of Lenders may a specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be amended performed, satisfied or complied with by the Company without at or prior to the consent Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Lenders Company, dated as of the Additional Closing Date, to include any Additional Lenders the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the Additional Closings upon form attached hereto as Exhibit H. (x) The Company shall have delivered to such Buyer a letter from the execution by such Additional Lender Company’s transfer agent certifying the number of shares of Common Stock outstanding as of a counterpart signature page hereto and date within five (5) days of the Additional Closing Date. (xi) 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 proceedings regarding such suspension by the SEC or the Principal Market have been threatened, as of the Additional Closing Date, either (A) by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market, other agreements than with respect to those issues set forth on the Company’s Current Report on Form 8-K, dated as of January 25, 2006. (xii) The Company shall have obtained all governmental, regulatory or third party consents and documents contemplated herein. approvals, if any, necessary for the sale of the Securities. (xiii) The Additional Closings Certificate of Designations in the form attached hereto as Exhibit B shall also take place at have been filed with the offices Secretary of Xxxxxx & Xxxxxxx LLP or at State of the State of Florida and shall be in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xiv) The Shareholder Approval shall have been obtained and shall be effective under applicable rules and regulations. (xv) The Company shall have delivered to such Buyer such other place and at such time as documents relating to the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under transactions contemplated by this Agreement and any Additional Lenders thereof as such Buyer or its counsel may reasonably request. (xvi) No event or events shall have occurred since the date hereof that, taken individually or in the aggregate, would reasonably be deemed expected to be “Lenders” for all purposes under this Agreementhave a Material Adverse Effect.

Additional Closing. To The obligation of Buyer to purchase Additional RCGI Notes from RCGI or to take the extent thatactions specified in Section 1(b) at any Additional Closing is subject to the satisfaction, upon at or prior to the First Tranche ClosingAdditional Closing Date, of each of the First Tranche Financing Amount is less than the Financing Amountfollowing conditions, then the Company shall provided that these conditions are for Buyer's sole benefit and may be permitted, waived by Buyer at any time during in its sole discretion by providing RCGI with prior written notice thereof: (i) The Exchange Closing shall have occurred. (ii) The Board of RCGI shall have adopted, and not rescinded or otherwise amended or modified, the sixty Resolutions. (60iii) day period following RCGI shall have executed and delivered to Buyer the First Tranche Additional RCGI Notes being purchased by Buyer at such Additional Closing. (iv) RCGI shall have delivered to Buyer a certificate evidencing the good standing of RCGI 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 or jurisdiction of incorporation or organization as of a date within ten (10) days of the Additional Closing Date. (v) RCGI shall have delivered to Buyer a secretary's certificate, dated as of the Additional Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation, certified as of a date within ten (10) days of the Additional Closing Date, by the Secretary of State of Delaware, (C) the Bylaws of RCGI, (D) the certificate or articles of incorporation or other organizational documents of each of the Subsidiaries, each certified as of a date within ten (10) days of the Additional Closing Date, by the Secretary of State of the state of such entity's jurisdiction of incorporation or organization, and (E) the bylaws or other similar documents of each of the Subsidiaries, each as in effect at the Additional Closing. (vi) RCGI shall have complied with the requirements of Section 1(b) (including the Additional Note Issuance Amount Limitations) and all of the Additional Sale Notice Election Conditions set forth in Section 1(d) shall have been satisfied at all times from the Exchange Closing Date until and including such Additional Closing Date. (vii) The representations and warranties of RCGI (including any exceptions thereto contained in the schedules hereto) shall be true and correct as of the date when made and as of 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 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 (viii) so long as there is nothing disclosed in any such updates (or the representations as affected thereby) that could, individually or in the aggregate, have a Material Adverse Effect as determined by Buyer, in its sole discretion, and RCGI shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by RCGI at or prior to such Additional Closing Date. Buyer shall have received a certificate, executed by the Chief Executive Officer of RCGI, dated as of such Additional Closing Date, to offer the foregoing effect and sell 2015 Notes equal as to such other matters as may be reasonably requested by Buyer, including an update as of such Additional Closing Date of the representations and related schedules contained in Sections 3(c), 3(f), 3(g), 3(h), 3(i), 3(n), 3(o), 3(p), 3(q), 3(s), 3(w), 3(z), and 3(bb). (viii) Buyer shall have received (A) the opinions of Baker & McKenzie and Thompson & Knight LLP (or such other law firms xx xxe rxxxxxxxxy accxxxxxxx to Xxxxx), dated as of the Additional Closing Date, which opinions will collectively address, among other things, laws of the States of Delaware, New York and Texas (and any other states in which RCGI has properties or assets as of such Additional Closing Date) applicable to the Remaining Financing Amount transactions contemplated hereby and the security interests provided pursuant to the Security Agreement, in form, scope and substance reasonably satisfactory to Buyer, and providing the opinions set forth in Exhibit 7(a)(xviii). (ix) RCGI shall have made all filings under all applicable securities laws necessary to consummate the issuance of the Securities (including the Additional RCGI Notes) pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon in compliance with such laws. (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60x) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in Section 7(a) shall have been satisfied and shall remain satisfied. (xi) As of each Additional Closing Date, RCGI shall have delivered to Buyer the Pro Forma Balance Sheet and Pro Forma Cap Table required by Section 4(bb). (xii) No injunction or other court or governmental agency order shall be in effect that prohibits the transactions contemplated by this Agreement, Agreement to be effected at such Additional Closing. (bxiii) the representations and warranties RCGI shall have paid to Buyer or its designee a transaction fee in an amount equal to 1.0% of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties principal amount of the Additional Lenders in Section 5 hereof RCGI Notes being purchased by Buyer at such Additional Closing (or, if it be paid to Buyer, such amount shall speak as of have been, if Buyer so requests, credited against the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders Purchase Price payable hereunder to include any Additional Lenders in the Additional Closings upon the execution by RCGI at such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings Closing). (xiv) RCGI shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at have delivered to Buyer such other place and at such time as documents relating to the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under transactions contemplated by this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementas Buyer or its counsel may reasonably request.

Additional Closing. To The obligation of each Buyer hereunder to purchase the extent Additional Notes at the Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that, upon other than with respect to deliverables to the First Tranche ClosingPlacement Agent pursuant to paragraph 7(b)(ii) hereof, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall these conditions are for each Buyer's sole benefit and may be permitted, waived by such Buyer at any time during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period The Company and each of its Subsidiaries shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the First Tranche ClosingTransaction Documents and (B) the Additional Notes (allocated in such principal amounts as such Buyer shall request), to offer and sell 2015 Notes equal to being purchased by such Buyer at the Remaining Financing Amount Closing pursuant to this Agreement to purchasers that Agreement. (ii) Such Buyer and the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectivelyPlacement Agent shall have received the opinion of Xxxxxxxxxx & Xxxxx LLP, the “Company's outside counsel, dated as of the Additional Lenders”). Closing Date, in substantially the form of Exhibit G attached hereto. (iii) The closings Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit F 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 sales shall be referred to herein as Buyer a certificate evidencing the “Additional Closings” formation and shall occur on a date determined by good standing of the Company and each Additional Lenderof its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, provided such as of a date is prior to the end within ten (10) days of the sixty Additional Closing Date. (60v) day period after The Company shall have delivered to such Buyer a certificate evidencing the First Tranche Closing. All sales made Company's and each of its Subsidiaries' qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and its Subsidiaries conduct business, as of a date within ten (10) days of the Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of its Subsidiaries as certified by the Secretary of State (or comparable office) of the jurisdiction of formation of the Company and each of its Subsidiaries 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(b) as adopted by the Company's and each of its Subsidiaries' Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and each of its Subsidiaries and (iii) the Bylaws of the Company and each of its Subsidiaries, each as in effect at the Additional Closings Closing, in the form attached hereto as Exhibit H. (aviii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth in Section 3 hereof shall speak be true and correct as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule Closing Date as though made at that time (except for representations and warranties that speak as of Lenders may a specific date which shall be amended true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company without at or prior to the consent Additional Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Lenders Company, dated as of the Additional Closing Date, to include any Additional Lenders the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the Additional Closings upon form attached hereto as Exhibit I. (ix) The Company shall have delivered to such Buyer a letter from the execution by such Additional Lender Company's transfer agent certifying the number of shares of Common Stock outstanding as of a counterpart signature page hereto and date within five (5) days of the other agreements Additional Closing Date. (x) The Company shall have delivered to each Buyer the Lock Up Agreements set forth in Schedule 7(a)(x) and documents contemplated herein. the terms of each such Lock Up Agreement shall have been complied with in all respects. (xi) 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 Closings Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall also take place at suspension by the SEC or the Principal Market have been threatened, 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. (xii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (xiii) Each of the Company's Subsidiaries shall have executed and delivered to such Buyer the Guarantee Agreement. (xiv) The Collateral Agent shall have received certified copies of request for copies of information on Form UCC-11, listing all effective financing statements which name as debtor the Company or any of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the opinion of Xxxxxx & Xxxxxxx LLP the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral, and the results of searches for any tax lien and judgment lien filed against such person or at its property, which results, except as otherwise agreed to in writing by the Collateral Agent, shall not show any such other place and at such time as liens. (xv) The Collateral Agent shall have received the Security Agreement, duly executed by the Company and each Additional Lender may agree in writing. Any of its Subsidiaries, together with (A) the original stock certificates representing all of the equity interests and all promissory notes sold pursuant to this Section 2.2 shall be deemed required to be “2015 pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement. (xvi) The Initial Closing shall have been completed. (xvii) There shall have been no Equity Conditions Failure (as defined in the Notes”, for ) as of the Additional Closing Date. (xviii) The Stockholder Approval shall have been obtained prior to the Additional Closing Date. (xix) One or more Registration Statements (as defined in the Registration Rights Agreement) covering all purposes under of the Registrable Securities (as defined in the Registration Rights Agreement) pursuant the Registration Rights Agreement shall have been declared effective by the SEC prior to the Additional Closing Date. (xx) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementas such Buyer or its counsel may reasonably request.

Additional Closing. To On the extent that, upon date of the First Tranche Company ------------------ Additional Closing or Buyer Additional Closing, as applicable (collectively, the First Tranche Financing Amount is less than the Financing Amount"Additional Closing"), then the Company shall complete the Series G Certificate of Designation by inserting the price per share to be permittedpaid for the Series G Preferred Shares, at any time during the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes equal as determined pursuant to the Remaining Financing Amount terms of Section 1(d) or Section 1(e), as applicable, and the number of Series G Preferred Shares to be issued, as determined pursuant to this Agreement the terms of Section 1(d) or Section 1(e), as applicable, file the Series G Certificate of Designation with the Office of the Delaware Secretary of State and issue and deliver to purchasers that each Buyer a stock certificate(s) representing such number of Company Series G Preferred Shares or Buyer Series G Preferred Shares, as applicable, which such Buyer is then purchasing (as indicated opposite such Buyer's name on the Schedule of Buyers or in the Buyer Notice, as applicable), duly executed on behalf of the Company and Requisite Lenders mutually agree upon registered in the name of such Buyer or its designee (each such holder, an “Additional Lender” the "Series G Stock Certificates" and collectivelytogether with the Series F Stock Certificates, the “Additional Lenders”"Stock Certificates"). The closings of such sales shall be referred to herein as the “Additional Closings” and Closing shall occur on a the date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak Notice or Buyer Notice, as applicable, at the offices of Schulte Roth & Zabel LLP, 900 Third Xxxxxx, Xxx Yoxx, Xew Yorx 00000, xx xx xxxx xxxxx xxxxxxxx xx xxxxl be agreed upon by the First Tranche Closing and (c) parties. On the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as date of the Additional Closing. The Schedule of Lenders may be amended by , each Buyer shall pay the Company without the consent purchase price for the Company Series G Preferred Shares or Buyer Series G Preferred Shares, as applicable, to be issued and sold to such Buyer at the Additional Closing, by wire transfer of immediately available funds in accordance with the Company's written wire instructions provided in writing to the Buyers at least two days prior to the date of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementClosing.

Additional Closing. To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then The obligation of the Company shall hereunder to issue and sell the Additional Notes to the Investor at the Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be permitted, waived by the Company at any time during in its sole discretion by providing the sixty Investor with prior written notice thereof: (60i) day period following The Investor shall have executed each of the First Tranche Closing, Transaction Documents to offer which it is a party and sell 2015 Notes equal delivered the same to the Remaining Financing Amount pursuant to this Agreement to purchasers that Company. (ii) The Investor shall have delivered for the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined Notes being purchased by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made Investor at the Additional Closings Closing its Additional Cash Purchase Price to the Company (aless the amounts withheld pursuant to Section 4(f)), by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (iii) The Collateral Agent will have duly executed the Subordination Agreements, and such Subordination Agreements shall be made on the terms remain in full force and conditions set forth in this Agreement, effect. (biv) the The representations and warranties of the Company set forth in Section 3 hereof Investor shall speak be true and correct as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule Closing Date as though made at that time (except for representations and warranties that speak as of Lenders may a specific date which shall be amended true and correct as of such specified date), and the Investor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company without the consent of the Lenders Investor at or prior to include any Additional Lenders in the Additional Closings upon Closing Date. (v) The Company shall have received the execution Waiver duly executed and delivered by the Existing Required Holders, and such Additional Lender of a counterpart signature page hereto Waiver shall remain in full force and of the other agreements and documents contemplated herein. effect. (vi) The Additional Closings Investor shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as have delivered to the Company the Forbearance Agreement, duly executed by the Investor, and each Additional Lender may agree such Forbearance Agreement shall remain in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement full force and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementeffect.

Additional Closing. To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then The obligation of the Company shall hereunder to issue and sell the Preferred Shares to each Buyer at the Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be permitted, waived by the Company at any time during the sixty in its sole discretion by providing each Buyer with prior written notice thereof: (60i) day period following the First Tranche Closing, to offer Such Buyer and sell 2015 Notes equal each other Buyer shall have delivered to the Remaining Financing Amount Company the Additional Purchase Price less (1) in the case of Steelhead and Castlerigg, the amounts withheld pursuant to this Agreement to purchasers that Section 4(g) or (2) such Buyer’s pro rata share of any amount outstanding under any outstanding Notes (including any outstanding principal, accrued and unpaid interest, fees, late charges and other amounts due in respect thereof)) for the Company and Requisite Lenders mutually agree upon (each Preferred Shares being purchased by such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made Buyer at the Additional Closings Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (aii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth such Buyer shall be true and correct in Section 3 hereof shall speak all material respects as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the Additional Closing Date. (iii) The Shareholder Approval shall have been obtained and shall be effective under applicable rules and regulations. (iv) The Company, prior to the Additional Closing. The Schedule of Lenders may be amended , shall have consummated the transactions contemplated by the Purchase Agreement, dated as of November 9, 2005 by and among the Company without the consent of the Lenders to include any Additional Lenders and Guardian International, Inc. (“Guardian Purchase Agreement”) in the Additional Closings upon form attached hereto as Exhibit I. (v) The Buyer shall have delivered to the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at Company such other place and at such time documents relating to the transactions contemplated by this Agreement as the Company and each Additional Lender or its counsel may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementreasonably request.

Additional Closing. To (a) At any time following the extent thatClosing through and including March 31, upon the First Tranche Closing2013, the First Tranche Financing Amount is less than Company may sell additional shares of Series C Preferred Stock (the Financing Amount, then the Company shall be permitted“Additional Shares’”), at any time during the sixty (60) day period following the First Tranche Closinga purchase price of $4.00 per share, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon one or more investor(s) (each such holder, an “Additional LenderInvestor” and collectively, the “Additional LendersInvestors”) acceptable to: (i) a majority of the Company’s board of directors; and (ii) the Majority Investors. (b) Each closing of the purchase, sale and issuance of Additional Shares to the Additional Investor(s) (each, an “Additional Closing”) shall take place at the offices of the Company at 10:00 a.m. on such date as the Company and the Additional Investor(s) participating in such Additional Closing may agree either orally or in writing (the “Additional Closing Date”). The closings of such sales shall be referred to herein as the “At each Additional Closings” and shall occur on a date determined by Closing, the Company and shall deliver to each Additional LenderInvestor participating in the Additional Closing a certificate in such Additional Investor’s name representing the shares of Series C Preferred Stock purchased by such Additional Investor at such Additional Closing, against payment of the purchase price as provided such date is prior in Section 1.2. Notwithstanding anything to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions contrary set forth in herein, this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders including, without limitation, Exhibit A hereto, may be amended by the Company without the consent of any Investors to: (i) reflect the Lenders issuance of Additional Shares at each Additional Closing; and (ii) upon the execution by an Additional Investor of a counterpart signature page hereto, to include any such Additional Lenders in Investor on Exhibit A (a) under the heading “Additional Closings upon Closing” reflecting the number of shares of Series C Preferred Stock purchased by such Additional Investor at each Additional Closing. Upon the execution by such Additional Lender Investor of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The hereto, such Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 Investor shall be deemed to be an “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “LendersInvestor” for all purposes under this Agreement.

Additional Closing. To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then The obligation of the Company shall hereunder to issue and sell the Additional Preferred Shares and the related Additional Warrants to each Buyer at the Additional Closing is subject to the satisfaction, at or before the Additional Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be permitted, waived by the Company at any time during in its sole discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each of the sixty (60) day period following Transaction Documents to which it is a party and delivered the First Tranche Closing, to offer and sell 2015 Notes equal same to the Remaining Financing Amount pursuant Company. (ii) Such Buyer and each other Buyer shall have delivered to this Agreement to purchasers that the Company the Additional Purchase Price for the Additional Preferred Shares and Requisite Lenders mutually agree upon (each the related Additional Warrants being purchased by such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made Buyer at the Additional Closings Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (aiii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth such Buyer shall be true and correct in Section 3 hereof all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall speak be true and correct in all respects) as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule Closing Date as though made at that time (except for representations and warranties that speak as of Lenders may a specific date, which shall be amended true and correct as of such specified date) and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Company without Transaction Documents to be performed, satisfied or complied with by such Buyer at or prior to the consent Additional Closing Date. (iv) 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 Lenders to include any Additional Lenders in the Additional Closings upon the execution transactions contemplated by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreement.

Additional Closing. To On a Trading Day that (A) is on or before the extent thatAdditional Closing Deadline, upon (B) follows the First Tranche Closing, date on which the First Tranche Financing Amount conditions set forth in Section 2.4 shall have been satisfied or duly waived and (C) is less than the Financing Amount, then the Company shall be permitted, at any time during the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that proposed by the Company and Requisite Lenders reasonably acceptable to each Initial Purchaser and mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined agreed by the Company and each Initial Purchaser (the “Additional LenderClosing Date”), provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on upon the terms and subject to the conditions set forth in this Agreementherein, (b) the representations and warranties of the Company may request to sell additional Notes (the “Additional Notes”) having an aggregate principal amount not to exceed $555,555.56 and for a Purchase Price that reflects the same original issue discount shown on Schedule I for the Initial Notes, by delivering to the Collateral Agent a notice specifying the aggregate Initial Principal Amount requested, the Purchase Price and the proposed Additional Closing Date, as well as certifying that the conditions set forth on Section 2.4 (other than the deliveries described in Section 3 hereof shall speak 2.2(c)) are satisfied as of the First Tranche date of such notice (the “Additional Closing and (c) the representations and warranties Notice”). The Collateral Agent shall forward such notice to each Purchaser and, upon receipt, each such Purchaser may, in its sole discretion, decide to purchase its Pro Rata Portion of the Additional Lenders Notes by notifying the Collateral Agent within five (5) Business Days of receipt of such Additional Closing Notice and indicating in Section 5 hereof shall speak as its notice whether such Purchaser is interested in purchasing Additional Notes in excess of its allocated Pro Rata Portion if available and, if so, its maximum additional Purchase Price. Should some Purchasers decline to purchase their Pro Rata Portion of the Additional ClosingNotes, the Collateral Agent may, in its sole discretion, reallocate such Pro Rata Portion to Purchasers having indicated such an interest in purchasing Additional Notes in excess of their allocation. The Schedule of Lenders may Should there not be amended enough such Purchasers to purchase such Pro Rata Portion, the Collateral Agent may, in its sole discretion, offer such Pro Rata Portion to third parties. Each such third party that agrees to purchase Additional Notes shall execute and deliver to the Collateral Agent a Joinder Agreement and, whether or not such Joinder Agreement shall be acknowledged by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings Company, shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, thereafter for all purposes under this Agreement be a party hereto and any have the same rights, benefits and obligations as a Purchaser party hereto on the Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this AgreementClosing Date.

Additional Closing. To the extent that, upon (a) At any time following the First Tranche Closing through and including the Second Closing, the First Tranche Financing Amount is less than Company may sell up to an aggregate of 166,667 shares of Series B Preferred Stock (the Financing Amount, then the Company shall be permitted“Additional Shares”), at any time during the sixty (60) day period following the First Tranche Closinga purchase price of $3.00 per share, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon one or more investor(s) (each such holder, an “Additional LenderInvestor” and collectively, the “Additional LendersInvestors”) acceptable to: (i) a majority of the Company’s board of directors; and (ii) the Majority Investors. (b) Each closing of the purchase, sale and issuance of Additional Shares to the Additional Investor(s) (each, an “Additional Closing”) shall take place at the offices of the Company at 10:00 a.m. on such date as the Company and the Additional Investor(s) participating in such Additional Closing may agree either orally or in writing (the “Additional Closing Date”). The closings of such sales shall be referred to herein as the “At each Additional Closings” and shall occur on a date determined by Closing, the Company and shall deliver to each Additional LenderInvestor participating in the Additional Closing a certificate in such Additional Investor’s name representing the shares of Series B Preferred Stock purchased by such Additional Investor at such Additional Closing, against payment of the purchase price as provided such date is prior in Section 1.2. Notwithstanding anything to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions contrary set forth in herein, this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders including, without limitation, Exhibit A hereto, may be amended by the Company without the consent of any Investors to: (i) reflect the Lenders issuance of Additional Shares at each Additional Closing; and (ii) upon the execution by an Additional Investor of a counterpart signature page hereto, to include any such Additional Lenders Investor on Exhibit A (a) under the heading “Additional Closing” reflecting the number of shares of Series B Preferred Stock purchased by such Additional Investor at each Additional Closing and (b) under the heading “Second Closing” to reflect that each Additional Investor has committed to purchase in the Second Closing a number of shares of Series B Preferred Stock equal to the number of Additional Closings upon Shares purchased by such Additional Investor at such Additional Closing. Upon the execution by such Additional Lender Investor of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The hereto, such Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 Investor shall be deemed to be an “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “LendersInvestor” for all purposes under this Agreement.

Additional Closing. To The obligation of each Buyer hereunder to purchase Notes at any Additional Closing is subject to the extent thatsatisfaction, upon at or before such Additional Closing Date, of each of the First Tranche Closingfollowing conditions, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall provided that these conditions are for each Buyer’s sole benefit and may be permitted, waived by such Buyer at any time during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period The Company and each of the Guarantors shall have duly executed and delivered to such Buyer each of the following documents to which it is a party: (A) each of the First Tranche ClosingTransaction Documents and (B) the Notes (allocated in such principal amounts as such Buyer shall request), to offer and sell 2015 Notes equal to being purchased by such Buyer at the Remaining Financing Amount Closing pursuant to this Agreement Agreement. (ii) Such Buyer shall have received the opinion of (x) Dechert LLP in a form reasonably acceptable to purchasers that such Buyer and (y) Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx in the form of Exhibit G-4 attached hereto, each the Company’s outside counsels, or such other counsels reasonably acceptable to the Designee, dated as of the applicable Additional Closing Date. (iii) The Company shall have delivered to such Buyer a copy of the Transfer Agent Instructions, which instructions shall have been delivered to and Requisite Lenders mutually agree upon acknowledged in writing by the Company’s transfer agent. (each iv) The Company shall have delivered to such holder, an “Additional Lender” Buyer certificates evidencing the formation and collectively, the “Additional Lenders”). The closings good standing of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lenderof the Guarantors in such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, provided such as of a date is within ten (10) calendar days prior to the end applicable Additional Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company’s and each of the sixty Guarantors’ qualification as a foreign corporation and good standing issued by the Secretary of State (60or comparable office) day period after of each jurisdiction in which the First Tranche Closing. All sales made Company and the Guarantors conduct business, as of a date within ten (10) calendar days prior to the applicable Additional Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation of the Company and each of the Guarantors as certified by the Secretary of State (or comparable office) of the jurisdiction of formation of the Company and each of its Subsidiaries within ten (10) calendar days prior to 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(b) as adopted by the Company’s and each of the Guarantors’ Board of Directors in a form reasonably acceptable to such Buyer, (ii) the Certificate of Incorporation of the Company and each of the Guarantors and (iii) the Bylaws of the Company and each of the Guarantors, each as in effect at the applicable Additional Closings Closing, in the form attached hereto as Exhibit K. (aviii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth shall be true and correct in Section 3 hereof shall all material respects (except for such representations qualified by materiality or Material Adverse Effect, which are 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 First Tranche 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 or the Guarantors at or prior to the applicable Additional Closing and (c) Date. Such Buyer shall have received a certificate, executed by the representations and warranties Chief Intellectual Property Officer of the Additional Lenders in Section 5 hereof shall speak Company, dated as of the applicable Additional Closing. The Schedule of Lenders Closing Date, to the foregoing effect and as to such other matters as may be amended reasonably requested by such Buyer in the form attached hereto as Exhibit L. (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 (5) calendar days prior to 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 applicable 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, 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. (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 Initial Closing shall have been completed. (xiii) The Stockholder Approval shall have been obtained. (xiv) The Company shall have delivered to such Buyer the Company’s wire instructions on Company’s letterhead duly executed by an authorized executive officer of the Company for the payment of the applicable Additional Purchase Price. (xv) The Collateral Agent shall have received an account control agreement, in form and substance satisfactory to the Collateral Agent, duly executed by the Company without the consent and/or Guarantor, as applicable, and such bank or financial institution (as applicable), or enter into other arrangements, as required under Section 5(i) of the Lenders Security Agreement, in form and substance satisfactory to include the Collateral Agent, in each case, subject to the terms of the Security Agreement. (xvi) The Collateral Agent shall have received (A) evidence satisfactory to the Collateral Agent of form UCC-1 financing statements for each appropriate jurisdiction as necessary pursuant to the terms of the Security Agreement and (B) the results of customary searches (including comparable searches in any Additional Lenders jurisdiction outside the United States) for UCC financing statements, tax liens and judgment liens filed against the Company (solely for the initial issuance of the Notes) or any of the Guarantors or any property of the foregoing, which results shall not show any such liens (other than Permitted Liens acceptable to the Collateral Agent and Intellectual Property Rights that occur in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and ordinary course of the other agreements Company’s and documents contemplated herein. Guarantors’ business as a purchaser, seller and enforcer of Intellectual Property Rights ). (xvii) The Additional Closings Collateral Agent shall also take place at have received the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as Security Agreement, duly executed by the Company and each Additional Lender may agree in writing. Any of the Guarantors, together with (A) stock certificates and promissory notes sold required to be pledged pursuant to this Section 2.2 the Security Agreement, accompanied by undated stock powers and allonges, respectively, in each case, subject to the terms of the Security Agreement, and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement. (xviii) The Company shall be deemed have delivered to be the Buyers a perfection certificate, duly completed and executed by the Company and each of its Subsidiaries (the “2015 NotesPerfection Certificate”, for all purposes under ). (xix) The Company and the Subsidiaries shall have delivered to such Buyer and/or the Collateral Agent such other documents relating to the transactions contemplated by this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementas such Buyer, the Collateral Agent or their respective counsels may reasonably request.

Additional Closing. To the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall be permitted, at At any time during the sixty period beginning on the Initial Closing Date and ending on the six (60) day period following the First Tranche Closing6)-month anniversary thereof, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that upon mutual agreement between the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectivelyFir Tree, the “Additional Lenders”). The closings of such sales Purchasers shall be referred permitted to herein as purchase up to an aggregate number of additional Preferred Shares (rounded down to the “Additional Closings” and shall occur on a date determined nearest whole number) equal to $5,000,000 divided by the Company and each Additional LenderPer Share Purchase Price, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this AgreementSection 2.2. If the Purchasers desire to purchase such additional Preferred Shares, Fir Tree shall deliver a written notice to the Company (the “Additional Closing Notice”), which shall specify the following: (a) the Additional Closing Purchase Price to be paid by each Purchaser; and (b) the representations anticipated Additional Closing Date (not to be less than five (5) Business Days from the date of such notice), it being understood that the Additional Closing Notice may be amended by Fir Tree at any time prior to the Additional Closing Date. Fir Tree shall provide such additional information as the Company may reasonably request with respect to the Additional Closing Notice or any information set forth therein. The additional closing of the purchase and warranties sale of Preferred Shares hereunder shall occur on such date and time as agreed between the Company and Fir Tree at the Houston, Texas offices of Vxxxxx & Exxxxx L.L.P. (1001 Fxxxxx, Suite 2500, Houston, Texas 77002) or at such other location as the parties shall mutually agree, upon satisfaction of the covenants and conditions set forth in Sections 2.4 and 2.5 (the “Additional Closing”). The parties agree that the Additional Closing may occur via delivery of facsimiles or photocopies of the closing deliverables contemplated hereby. Unless otherwise provided herein, all proceedings to be taken and all documents to be executed and delivered by all parties at the Additional Closing will be deemed to have been taken and executed simultaneously, and no proceedings will be deemed to have been taken nor documents executed or delivered until all have been taken. At the Additional Closing, on the Additional Closing Date, upon the terms and subject to the conditions set forth herein: (a) the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, a number of Preferred Shares (rounded down to the nearest whole number) equal to the Additional Closing Purchase Price set forth opposite such Purchaser’s name in the Additional Closing Notice divided by the Per Share Purchase Price; provided, however, that, unless otherwise approved by the holders of a majority of the Company’s outstanding shares of Common Stock (excluding, for the avoidance of doubt, the Securities), the aggregate number of Preferred Shares issued to Purchasers pursuant to this Agreement or in connection herewith at a Price Per Share that is below the greater of the market value per share or book value per share of the Common Stock as determined consistently with NASDAQ Rule 5635(d) shall in no event exceed 19.9% of the outstanding shares of the Company’s Common Stock or 19.9% of the outstanding voting power of the Company as of immediately prior to the Initial Closing and prior to giving effect to the issuance of Securities pursuant to this Agreement, and any reduction as a result of the foregoing shall be borne pro rata amongst the Purchasers based on the number of Preferred Shares opposite such Purchaser’s name in the Additional Closing Notice; and (b) to effect the purchases and sales described in Section 2.2(a), (i) each Purchaser shall deliver to the Company, via wire transfer, to an account designated by the Company at least two (2) Business Days prior to the Additional Closing Date, immediately available funds equal to such Purchaser’s Additional Closing Purchase Price set forth opposite such Purchaser’s name in the Additional Closing Notice (as adjusted for any reduction in the number of Securities to be purchased pursuant to the proviso in Section 2.2(a)), (ii) the Company shall deliver to each Purchaser the number of Preferred Shares described in Section 2.2(a) (as adjusted for any reduction in the number of Securities to be purchased pursuant to the proviso in Section 2.2(a)) and (iii) the Company and each Purchaser shall deliver the other items set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of 2.4 deliverable at the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreement.

Additional Closing. To The obligation of the extent thatCompany hereunder to issue and sell the Notes to any Buyer at any Additional Closing is subject to the satisfaction, upon at or before such Additional Closing Date, of each of the First Tranche Closingfollowing conditions, provided that these conditions are for the First Tranche Financing Amount Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each such Buyer with prior written notice thereof: (i) Such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) The Company shall have received the Stockholder Approval. (iii) Such Buyer shall have delivered to the Company its applicable Additional Purchase Price (less than the Financing Amountamounts withheld pursuant to Section 4(g)) for the Notes being purchased by such Buyer at the applicable Additional Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company, then and the Company shall be permitted, at any time during have received the sixty aggregate Additional Purchase Price (60) day period following less the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount amounts withheld pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon Section 4(g)). (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). iv) The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of such Buyer shall be true and correct in all material respects (except for such representations qualified by materiality or Buyer Material Adverse Effect, which are true and correct in all respects) as of the Company set forth in Section 3 hereof shall 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 the First Tranche Closing a specific date which shall be true and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak correct as of such specified date), and such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by such Buyer at or prior to the applicable Additional Closing Date. (v) The Company shall consummate the Approved Investment giving rise to the applicable Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreement.

Additional Closing. To (a) The Additional Closing (if any) shall take place (i) on a Business Day specified by the extent that, upon the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then the Company shall be permitted, at any time during the sixty (60) day period following the First Tranche Closing, Class A Purchaser in a notice to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that the Company and Requisite Lenders mutually agree upon the Class B Purchasers (each such holder, an “Additional Lender” and collectively, the “Notice of Additional LendersClosing”). The closings of such sales shall be referred to herein as , following the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end satisfaction or waiver of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this AgreementSection 2.09, Section 2.10 and Section 2.11 (bother than those conditions that by their nature are to be satisfied at the Additional Closing, but subject to the fulfillment or waiver of those conditions at the Additional Closing) but which shall take place (A) no earlier than thirty (30) days after receipt by the representations and warranties Class B Purchasers of the Notice of Additional Closing (provided that the Additional Closing shall not occur during the last fifteen (15) days of any calendar quarter) and (B) no later than the Drop-Dead Date, or (ii) at such other time and place as the Company and the Purchasers may agree, subject, in each case, to the satisfaction or waiver of the conditions set forth in Section 3 hereof shall speak as 2.09, Section 2.10 and Section 2.11 at the Additional Closing. (b) The Parties agree that if the Class B Purchasers do not acquire all of the First Tranche Aggregate Class B Purchased Units at the Initial Closing, then the Class A Purchaser shall be required to deliver the Notice of Additional Closing no later than thirty (30) days prior to the Drop-Dead Date, and to the extent such Notice of Additional Closing has not been delivered by such date, such Notice of Additional Closing shall be deemed to have been given, and the Additional Closing shall occur on the Drop-Dead Date, subject to the satisfaction or waiver of the conditions set forth in Section 2.09, Section 2.10 and Section 2.11 on such date. (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings Closing (if any) shall also take place at the offices of Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP at One Xxxxxx & Xxxxxxx LLP Square, Wilmington, Delaware (or at such other place and at such time location as agreed to by the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementthe Purchasers).

Additional Closing. To If the extent that, upon full number of the First Tranche authorized shares of Series A Preferred Stock and Warrants is not sold at the Initial Closing, one additional closing (the First Tranche Financing Amount "Additional Closing", and the Additional Closing and the Initial Closing being referred to as a "Closing") may occur on any day on or prior to May 9, 2005 (or such later date as agreed to in writing by the Company and the Purchasers) for the sale of up to the balance of the authorized but unissued Series A Preferred Stock and Warrants to such persons as the Company may determine, so long as the sale of such securities at the Additional Closing is effected pursuant to the terms of this Agreement and at a price per share paid in cash, no less than the Financing Amountper share Purchase Price. The Additional Closing shall be effected in the manner set forth in Section 1.3. Any individual or entity purchasing securities at the Additional Closing (each, then an "Additional Purchaser," and collectively "Additional Purchasers") shall execute a signature page to this Agreement and the Company shall be permittedupdate Exhibit A hereto to include each such Additional Purchaser, at any which time during each such Additional Purchasers shall be deemed to be a "Purchaser" hereunder for purposes of this Agreement and all other agreements contemplated hereby, and a "Holder" under the sixty Rights Agreement (60) day period following as defined in Section 2.1). At the First Tranche Additional Closing, to offer and sell 2015 Notes equal (i) the Company will deliver to the Remaining Financing Amount pursuant Additional Purchasers the various certificates, instruments and documents referred to this Agreement in Section 2.1(a) hereof, (ii) the Additional Purchasers will deliver to purchasers that the Company the various certificates, instruments and Requisite Lenders mutually agree upon documents referred to in Section 2.1(b) below, and (iii) the Company shall deliver to each Additional Purchaser a share certificate and Warrant registered in such holderAdditional Purchaser's name representing the shares of Series A Preferred Stock and Warrants that such Additional Purchaser is to receive from the Company at the Additional Closing to be set forth opposite such Additional Purchaser's name on the updated Exhibit A hereto, against payment of the purchase price therefor by check or wire transfer to an “Additional Lender” and collectively, account designated by the “Additional Lenders”)Company or other means acceptable to the Company. The closings of such sales shall be Initial Purchased Securities and the securities, if any, purchased at the Additional Closing, are referred to herein as the “Additional Closings” and shall occur on a date determined by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this Agreement, (b) the representations and warranties of the Company set forth in Section 3 hereof shall speak as of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule of Lenders may be amended by the Company without the consent of the Lenders to include any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place at the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as the Company and each Additional Lender may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreement"Purchased Securities."

Additional Closing. To The obligation of each Buyer hereunder to purchase the extent thatAdditional Preferred Shares and the related Additional Warrants at each Additional Closing is subject to the satisfaction, upon at or before the First Tranche Closingapplicable Additional Closing Date, of each of the First Tranche Financing Amount is less than the Financing Amountfollowing conditions, then the Company shall provided that these conditions are for each Buyer's sole benefit and may be permitted, waived by such Buyer at any time during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period following The Company shall have duly executed and delivered to such Buyer (A) each of the First Tranche Closing, to offer Transaction Documents and sell 2015 Notes equal to (B) the Remaining Financing Amount Additional Preferred Shares (in such numbers as is set forth across from such Buyer's name in column (3) of the Schedule of Buyers and the related Warrants (in such numbers as is set forth across from such Buyer's name in column (4) of the Schedule of Buyers) being purchased by such Buyer at the applicable Additional Closing pursuant to this Agreement to purchasers that Agreement. (ii) Such Buyer shall have received the Company and Requisite Lenders mutually agree upon (each such holderopinion of Guzov Ofsink, an “Additional Lender” and collectivelyLLC, the “Company's outside counsel, dated as of the Additional Lenders”). Closing Date, in substantially the form of Exhibit E attached hereto. (iii) The closings Company shall have delivered to such Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit D 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 sales shall be referred to herein as Buyer a certificate evidencing the “Additional Closings” formation and shall occur on a date determined by good standing of the Company and each Additional Lender, provided of its Subsidiaries in each such entity's jurisdiction of formation issued by the Secretary of State (or equivalent) of such jurisdiction of formation as of a date is prior to the end within ten (10) days of the sixty applicable Additional Closing Date. (60v) day period after The Company shall have delivered to such Buyer a certificate evidencing the First Tranche Closing. All sales made Company's qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, 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 within ten (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(b) 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 applicable Additional Closings Closing Date, in the form attached hereto as Exhibit F. (aviii) shall be made on the terms and conditions set forth in this Agreement, (b) the The representations and warranties of the Company set forth in Section 3 hereof shall be true and correct 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) and the First Tranche Company shall have performed, satisfied and complied in all 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 G. (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 (cII) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak not have been suspended, as of the Additional Closing. The Schedule of Lenders may be amended Closing Date, by the Company without SEC or the consent Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Lenders to include any Additional Lenders Closing Date, either (A) in writing by the Additional Closings upon SEC or the execution Principal Market or (B) by such Additional Lender of a counterpart signature page hereto and falling below the minimum maintenance requirements of the other agreements and documents contemplated herein. Principal Market. (xi) The Additional Closings Company shall also take place at have delivered to such Buyer a copy of the offices of Xxxxxx & Xxxxxxx LLP or at such other place and at such time as Amendment to the Credit Agreement between the Company and each Additional Lender may Xxxxx Fargo in which Xxxxx Fargo shall agree to exempt in writing. Any notes sold addition to the Initial Exemption $1,000,000 of the proceeds to the Company from the sale of the Preferred Shares and the Warrants from the scope of the liens on the Company's assets held by Xxxxx Fargo; provided, however, that such a separate Amendment to the Credit Agreement shall not be required if the Amendment to Credit Agreement delivered pursuant to this Section 2.2 7(a)(xvii) shall have exempted an aggregate of $4,000,000 of the proceeds to the Company from sales of Preferred Shares and Warrants made at the Initial Closing and the Additional Closing collectively from the scope of the liens on the Company’s assets held by Xxxxx Fargo. (xii) The Certificate of Designations shall be deemed in full force and effect, enforceable against the Company in accordance with its terms and shall not have been amended. (xiii) No event or events shall have occurred since the date hereof that, taken individually or in the aggregate, would reasonably be expected to be “2015 Notes”, for all purposes under have a Material Adverse Effect. (xiv) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementas such Buyer or its counsel may reasonably request.

Additional Closing. To The obligation of the extent thatInvestor hereunder to purchase the Additional Notes at the Additional Closing is subject to the satisfaction, upon at or before the First Tranche ClosingAdditional Closing Date, of each of the First Tranche Financing Amount is less than following conditions, provided that these conditions are for the Financing Amount, then Investor's sole benefit and may be waived by the Company shall be permitted, Investor at any time during in its sole discretion by providing the sixty Company with prior written notice thereof: (60i) day period following the First Tranche ClosingThe Company and each of its Subsidiaries, to offer if any, shall have duly executed and sell 2015 Notes equal delivered to the Remaining Financing Amount Investor each of the following documents to which it is a party: (A) each of the Transaction Documents, (B) the Additional Cash Note (allocated in such principal amounts as the Investor shall request) being purchased by the Investor at the Additional Closing pursuant to this Agreement to purchasers that and (C) the Company and Requisite Lenders mutually agree upon Additional Exchange Note (each allocated in such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein principal amounts as the “Additional Closings” and Investor shall occur on a date determined request) being purchased by the Company and each Additional Lender, provided such date is prior to the end of the sixty (60) day period after the First Tranche Closing. All sales made Investor at the Additional Closings (a) shall be made on the terms and conditions set forth in Closing pursuant to this Agreement, . (bii) the The representations and warranties of the Company set forth in Section 3 hereof shall speak be true and correct as of the First Tranche Closing date when made and (c) the representations and warranties of the Additional Lenders in Section 5 hereof shall speak as of the Additional Closing. The Schedule Closing Date as though made at that time (except for representations and warranties that speak as of Lenders may a specific date which shall be amended true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company without at or prior to the consent Additional Closing Date. (iii) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Lenders to include Securities. (iv) The Collateral Agent shall have received certified copies of request for copies of information on Form UCC‑11, listing all effective financing statements which name as debtor the Company or any Additional Lenders of its Subsidiaries and which are filed in such office or offices as may be necessary or, in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and opinion of the Collateral Agent, desirable to perfect the security interests purported to be created by the Security Agreement, together with copies of such financing statements, none of which, except as otherwise agreed in writing by the Collateral Agent, shall cover any of the Collateral, and the results 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 Collateral Agent, shall not show any such liens. (v) The Collateral Agent shall have received the Security Agreement, duly executed by the Company, together with (A) the original stock certificates representing all of the equity interests and all promissory notes required to be pledged thereunder, accompanied by undated stock powers and allonges executed in blank and other proper instruments of transfer and (B) any copyright, patent and trademark agreements required by the terms of the Security Agreement. (vi) The Collateral Agent shall have received the Subordination Agreements, duly executed by all parties thereto, and documents contemplated herein. such Subordination Agreements shall remain in full force and effect. (vii) The Additional Closings Company shall also take place at have received the offices of Xxxxxx & Xxxxxxx LLP or at Waiver duly executed and delivered by the Existing Required Holders, and such Waiver shall remain in full force and effect. (viii) The Company shall have delivered to the Investor the Forbearance Agreement, duly executed by the Company, and such Forbearance Agreement shall remain in full force and effect. (ix) The Company shall have delivered to the Investor such other place and at such time documents relating to the transactions contemplated by this Agreement as the Company and each Additional Lender Investor or its counsel may agree in writing. Any notes sold pursuant to this Section 2.2 shall be deemed to be “2015 Notes”, for all purposes under this Agreement and any Additional Lenders thereof shall be deemed to be “Lenders” for all purposes under this Agreementreasonably request.

Additional Closing. To In the extent that, upon event an Investment (as defined in the First Tranche Closing, the First Tranche Financing Amount is less than the Financing Amount, then form of Notes) by the Company shall be permitted, at or any time during the sixty (60) day period following the First Tranche Closing, to offer and sell 2015 Notes equal to the Remaining Financing Amount pursuant to this Agreement to purchasers that wholly-owned Subsidiary of the Company and Requisite Lenders mutually agree upon (each such holder, an “Additional Lender” and collectively, the “Additional Lenders”). The closings of such sales shall be referred to herein as the “Additional Closings” and shall occur on that is a date determined Guarantor has been identified by the Company and each Additional Lenderthe Designee that will be funded, provided such date is prior in whole or in part, through the purchase of Notes pursuant to the end of the sixty (60) day period after the First Tranche Closing. All sales made at the Additional Closings (a) shall be made on the terms and conditions set forth in this AgreementAgreement (such Investment, an “Approved Investment”), the Designee may, in its sole and absolute discretion, elect to purchase and allocate among one or more of its Affiliates, each of which shall then become a “Buyer” hereunder pursuant to Section 9(g), subject to the satisfaction (bor waiver) the representations and warranties of the Company conditions set forth in Section 3 hereof shall speak as 7(c) below, on one or more occasions (each an “Additional Closing” and together with the Initial Closing and the Series B Warrant Closing, each a “Closing”), and the Company will then be required to issue and sell to such Buyer, subject to the satisfaction (or waiver) of the First Tranche Closing and (c) the representations and warranties of the Additional Lenders conditions set forth in Section 5 hereof shall speak 6(c) below, on one or more Additional Closing Date(s) (as of the Additional Closing. The Schedule of Lenders may be amended defined below), Notes in an aggregate principal amount as is requested by the Company without the consent of the Lenders to include Designee, which principal amount for all Buyers in any Additional Lenders in the Additional Closings upon the execution by such Additional Lender of a counterpart signature page hereto and of the other agreements and documents contemplated herein. The Additional Closings shall also take place not exceed the lower of (x) the amount of the applicable Approved Investment and (y) $365,000,000, together with any other Notes purchased by Buyers prior to the applicable date of determination (the lesser of (x) and (y), the “Maximum Amount”). The Designee shall, in its sole and absolute discretion, determine how to allocate the principal amount of Notes to be purchased at the offices any Additional Closing among one or more of Xxxxxx & Xxxxxxx LLP or at such other place and at such time its Affiliates, each of which shall then become a “Buyer” hereunder pursuant to Section 9(g), as long as the aggregate principal amount of such Notes shall not exceed the Maximum Amount. In the process of identifying an Approved Investment, the Company shall (i) unless an Affiliate of the Designee then serves as a director or observer on the Company’s Board of Directors (the “Board”), notify the Designee in writing of a prospective Approved Investment at least thirty (30) days prior to entering into definitive agreements with respect to such Approved Investment, (ii) offer the Designee or any of its Affiliates to sign a confidentiality agreement in a form and each Additional Lender may agree substance that is reasonably acceptable to such parties in writingorder to enable the Designee or any of its Affiliates to assist in the due diligence process of the Company with respect to such Approved Investment and (iii) consult with the Designee in good faith while conducting due diligence with respect to such Approved Investment. Any notes sold pursuant The Company shall cooperate with the Designee in good faith in electing whether to this Section 2.2 propose any potential investment to the Designee to be an Approved Investment. In addition to potential investments proposed as Approved Investments, the Company shall be deemed required to be “2015 Notes”present to the Designee any Investment that, for all purposes under this Agreement and alone or in a series of related transactions, exceeds $100,000,000, such that the Designee shall have the right to designate any Additional Lenders thereof shall be deemed such Investment as an Approved Investment (notwithstanding anything to be “Lenders” for all purposes under this Agreementthe contrary in the definition thereof).