Common use of CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER Clause in Contracts

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company shall have executed and delivered to the Investor the Amended and Restated Notes, the Replacement Warrants, the Additional Notes and the Additional Warrants being issued to such Investor at the Closing. (c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS") (other than proportional changes (the "PROPORTIONATE CHANGES") in the numbers reflecting the different dollar amount of such Investor's Notes and the number of Warrant Shares underlying such Investor's Warrants), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, (iii) surrendered their Existing Notes and Existing Warrants for Amended and Restated Notes and Replacement Warrants identical to the Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Company shall have delivered to the Company's transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated July 30, 2006 shall also apply to the Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional Warrants. (e) The Investor shall have received the opinions of Xxxxx and Xxxxxx, LLP, the Company's outside counsel, and Xxxx Xxxxx LLP, the Company's special Colorado counsel, dated as of the Closing Date, in substantially the form of EXHIBIT H attached hereto. (f) The Company shall have delivered to the Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to the Investor a certificate evidencing the 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 is required to be so qualified, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as EXHIBIT I. (j) The representations and warranties of the Company hereunder and under each other Transaction Document shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of 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 performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor in the form attached hereto as EXHIBIT G. (k) 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 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 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. (l) Subject to obtaining the Stockholder Approval, the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company shall have executed and delivered to the Investor the Amended and Restated Notes, the Replacement Warrants, the Additional Notes and the Additional Warrants being issued to such the Investor at the Closing. (c) Each Investors holding no less than a majority in principal amount of the Other Investors Existing Notes shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS") (other than proportional changes (the "PROPORTIONATE CHANGES") in the numbers reflecting the different dollar principal amount of such Investor's Other Investors' Existing Additional Notes and (the number of Warrant Shares underlying such Investor's Warrants"Proportionate Changes")), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, agreements and (iii) surrendered their Existing Additional Notes and Existing Warrants for Amended and Restated Additional Notes and Replacement Warrants identical to the Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Company shall have delivered to the Company's transfer agent, with a copy to the Investors, agent a letter stating that the Irrevocable Transfer Agent Instructions dated July 3027, 2006 shall also apply to the Amended and Restated Notes, Replacement Warrant Additional Conversion Shares, Additional Notes and Additional Warrants. (e) The Investor shall have received the opinions of Xxxxx and Xxxxxx, LLP, the Company's outside counsel, and Xxxx Xxxxx LLP, the Company's special Colorado counsel, dated as of the Closing Date, in substantially the form of EXHIBIT H attached hereto. (f) The Company shall have delivered to the Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to the Investor a certificate evidencing the 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 is required to be so qualified, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving consistent with the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of at the Closing, in the form attached hereto as EXHIBIT I.Exhibit B. (jf) The representations and warranties of the Company hereunder under the Securities Purchase Agreement and under each other Transaction Document shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default Default or Event of Default (other than the Default or Event of Default relating to Existing Claims) shall have occurred and be continuing as of on the Closing Datedate hereof either immediately before or after giving effect to this Agreement in accordance with its terms. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor in the form attached hereto as EXHIBIT G.Exhibit C. (kg) 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 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 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. (l) Subject to obtaining the Stockholder Approval, the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor's ’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company shall have executed and delivered to the Investor the Amended and Restated Notes, the Replacement Warrants, the Additional Notes and the Additional Amended and Restated Warrants being issued to such Investor at the Closing. (c) The Company shall have delivered to the Investor such Investors Release Amount by wire transfer of immediately available funds pursuant to the wire instructions provided by the Investor. (d) The Amended and Restated Notes and Transaction Documents shall be secured pursuant to the terms of the Security Documents in the same manner and to the same extent as the Existing Notes. (e) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS") (other than proportional changes (the "PROPORTIONATE CHANGES") in the numbers reflecting the (x) different dollar principal amount of such Investor's Notes and the Other Investors Existing Notes, (y) different number of Existing Warrant Shares underlying such Investor's WarrantsInvestors Existing Warrants and (z) different release amounts (the “Proportionate Changes”)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, agreements and (iii) surrendered their Existing Notes and Existing Warrants for Amended and Restated Notes and Replacement Amended and Restated Warrants identical to the Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) Amended and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Restated Warrants of the Investor hereunder (other than the Proportionate Changes). (df) The Company shall have delivered to the Company's ’s transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated July 30May 17, 2006 2005 shall also apply to the Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional Warrants. (eg) The Investor shall have received the opinions of Xxxxx and Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, LLPP.C., the Company's ’s outside counsel, and Xxxx Xxxxx LLP, the Company's special Colorado counsel, dated as of the Closing Date, in substantially the form of EXHIBIT H Exhibit D attached hereto. (f) The Company shall have delivered to the Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to the Investor a certificate evidencing the 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 is required to be so qualified, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as EXHIBIT I.Exhibit E. (ji) The representations and warranties of the Company hereunder under the Securities Purchase Agreement and under each other Transaction Document Document, including without limitation, each Security Document, shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default Default or Event of Default (other than Default or Event of Default relating to Existing Claims) shall have occurred and be continuing as of on the Closing Datedate hereof either immediately before or after giving effect to this Agreement in accordance with its terms. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor in the form attached hereto as EXHIBIT G.Exhibit F. (kj) 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 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 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, except as set forth in the Current Report on Form 8-K filed by the Company with the SEC on September 12, 2005. (lk) Subject to obtaining the Stockholder Approval, the The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including, without limitation, any approvals or notifications required by the Principal Market. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor's ’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company shall have executed delivered to the Investor its Redemption Payment Amount (plus, in the case of Portside Growth and Opportunity Fund, the amounts due pursuant to Section 4(e) hereof). (c) The Company shall have delivered to the Investor the Amended and Restated Notes, the Replacement Warrants, the Additional Notes and the Additional Warrants WoozyFly Shares being issued transferred to such Investor at the Closing. (cd) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS"“Other Agreements”) (other than proportional changes (the "PROPORTIONATE CHANGES"“Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor's Notes ’s Notes, the number of Common Shares being issued to such Investor and the number of Warrant WoozyFly Shares underlying being issued to such Investor's WarrantsInvestor and Section 4(e)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, agreements and (iii) surrendered their Existing Notes and Existing Warrants for Amended and Restated Notes and Replacement Warrants identical to Xxxxxx to be held in escrow pending the Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Company Second Closing, at which time it shall have be delivered to the Company's transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated July 30, 2006 shall also apply to the Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional WarrantsCompany for cancellation. (e) The Investor Kall shall have received the opinions of Xxxxx and Xxxxxx, LLP, the Company's outside counsel, and Xxxx Xxxxx LLP, the Company's special Colorado counsel, dated as of the Closing Date, (i) executed an agreement in substantially the form of EXHIBIT H attached heretohereto as Exhibit D (the “Kall Agreement”), (ii) satisfied or waived all conditions to the closing contemplated by the Kall Agreement and (iii) surrendered his Existing Notes to Xxxxxx to be held in escrow pending the Second Closing, at which time it shall be delivered to the Company for cancellation in exchange for a new note in the form attached hereto as Exhibit E (the “Kall Note”). (f) The Company WoozyFly Inc. shall have delivered executed the Registration Rights Agreement relating to the Investor a certificate evidencing WoozyFly Shares, in the formation form attached hereto as Exhibit F, and good standing of delivered the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by same to the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing DateInvestor. (g) The Company shall have delivered to the Investor a certificate evidencing the 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 is required to be so qualified, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as EXHIBIT I.. (jh) The representations and warranties of the Company hereunder and under each other Transaction Document shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date (except as set forth in the Disclosure Schedules to the Existing Securities Purchase Agreement as amended as of the date hereof) as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer President of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor in the form attached hereto as EXHIBIT G.Exhibit H. (ki) 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 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 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. (lj) Subject to obtaining the Stockholder Approval, the The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (mk) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction or waiver of each of the following conditions, provided that these conditions are for the Investor's sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company shall have executed and delivered to the Investor the Amended and Restated Notes, the Replacement Series D Warrants, the Additional Notes Series E Warrants, the Series F Warrants and the Additional Series G Warrants being issued to such Investor at the Closing. (c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS") (other than proportional changes (the "PROPORTIONATE CHANGES") in the numbers reflecting the different dollar amount of such Investor's Notes and the number of Warrant Shares underlying such Investor's Warrants), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, (iii) surrendered their Existing Notes and Existing Warrants for Amended and Restated Notes and Replacement Warrants identical to the Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Company shall have delivered to the Company's transfer agent, with a copy to the InvestorsInvestor, a letter stating that the Irrevocable Transfer Agent Instructions dated July 30October 5, 2006 2005 shall also apply to the Existing Warrant Shares, the New Warrant Shares and the Second Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional WarrantsRegistration Rights Agreement. (ed) The Such Investor shall have received the opinions opinion of Xxxxx and Xxxxxx, Xxxxxx-Xxxxxxx, Colt & Mosle LLP, the Company's outside U.S. counsel, and Xxxx Xxxxx LLPXxxxxx Xxxxxxx, the Company's special Colorado outside Australian counsel, each dated as of the Closing Date, similar in substantially all material respects to the form of EXHIBIT H attached heretoopinions delivered pursuant to the Amendment Agreement. (f) The Company shall have delivered to the Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to the Investor a certificate evidencing the 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 is required to be so qualified, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado within ten (10) days of the Closing Date. (ie) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, and (ii) the Certificate of Incorporation and (iii) the BylawsConstitution, each as in effect as of the Closing, similar in all material respects to the form attached hereto as EXHIBIT I.certificate executed by the Secretary of the Company delivered pursuant to the Amendment Agreement. (jf) The representations and warranties of the Company hereunder and under each other Transaction Document shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and (if different) as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) , which shall remain true 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 at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing correct as of the Closing Datesuch specific date). The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor Investor, similar in all material respects (except as set forth above) to the form attached hereto as EXHIBIT G.certificate executed by the Chief Executive Officer of the Company delivered pursuant to the Amendment Agreement. (kg) The Common Stock ADRs (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the 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 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. (lh) Subject to obtaining the Stockholder Approval, the The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the issue and sale of the Securities, including, without limitation, any approvals or notifications required by the Principal Market. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (m) The Company shall have delivered to the Investor such other documents relating Xxxxxxx Xxxx & Xxxxx LLP a cash amount equal to the transactions contemplated SRZ Expense (reduced as set forth herein), by this Agreement as wire transfer of immediately available funds pursuant to the Investor or its counsel may reasonably requestwire instructions provided by Xxxxxxx Xxxx & Xxxxx LLP. (j) The Company shall have delivered to Xxxxx & XxXxxxxx a cash amount equal to the Xxxxx Expense, by wire transfer of immediately available funds pursuant to the wire instructions provided by Xxxxx & XxXxxxxx.

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor's ’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company and the other Buyers party thereto shall have executed the Securities Purchase Agreement, and any related transaction documents thereto, and delivered the same to the Investor. (c) The Company and Fortress Credit Corp. shall have executed the Fortress Amendment and Waiver and a copy thereof shall have been delivered to the Investor. (d) The Company shall have executed and delivered to the Investor the Amended and Restated Notes, the Replacement Warrants, the Additional Notes Note and the Additional Warrants Warrant being issued to such the Investor at the Closing. (ce) Each The Board of Directors of the Other Investors shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS") (other than proportional changes (the "PROPORTIONATE CHANGES") in the numbers reflecting the different dollar amount of such Investor's Notes and the number of Warrant Shares underlying such Investor's Warrants), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, (iii) surrendered their Existing Notes and Existing Warrants for Amended and Restated Notes and Replacement Warrants identical to the Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Company shall have delivered to adopted resolutions consistent with the Company's transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated July 30, 2006 shall also apply to the Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional Warrants. (e) The Investor shall have received the opinions of Xxxxx and Xxxxxx, LLP, the Company's outside counsel, and Xxxx Xxxxx LLP, the Company's special Colorado counsel, dated as of the Closing Date, in substantially the form of EXHIBIT H attached heretotransactions contemplated hereby. (f) The Company shall have delivered to the Investor a certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to the Investor a certificate evidencing the 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 is required to be so qualified, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as EXHIBIT I. (j) The representations and warranties of the Company hereunder and under each other Transaction Document in Section 3(b) hereof shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date). (g) The Company and the Company each of Xxxxxxx Xxxxxxxxx, Xxxxxxx XxXxxxxxxx, Xxx X. Xxxxxx, X. Xxxxxxxxx XxXxxxx, Xxxxxx & XxXxxxx Capital Management and Peninsula Capital Management shall have performedexecuted a voting agreement, 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 Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor substantially in the form attached hereto as EXHIBIT G. (k) The Common Stock (I) Exhibit C, and each shall be designated for quotation or listed on have delivered the Principal Market and (II) shall not have been suspended, as of same to the 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 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 MarketInvestor. (l) Subject to obtaining the Stockholder Approval, the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (mh) The Company shall have delivered to the Investor such other documents relating a letter from the Company that is acknowledged and agreed to by the Company’s transfer agent acknowledging that the Irrevocable Transfer Agent Instructions dated December 30, 2004 shall also apply to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably requestReplacement Conversion Shares and Additional Warrant Shares.

CONDITIONS TO INVESTOR'S OBLIGATIONS HEREUNDER. The obligations of the Investor hereunder are subject to the satisfaction of each of the following conditions, provided that these conditions are for the Investor's ’s sole benefit and may be waived by the Investor at any time in its sole discretion by providing the Company with prior written notice thereof: (a) The Company shall have executed this Agreement and the Amended and Restated Registration Rights Agreement and delivered the same to the Investor. (b) The Company shall have executed and delivered to the Investor the Second Amended and Restated Notes, the Replacement Warrants, the Additional Notes and the Additional Second Amended and Restated Warrants being issued to such Investor at the Closing. (c) Each of the Other Investors shall have (i) executed agreements identical to this Agreement (the "OTHER AGREEMENTS"“Other Agreements”) (other than (i) proportional changes (the "PROPORTIONATE CHANGES"“Proportionate Changes”) in the numbers reflecting the different dollar amount of such Investor's ’s Notes and the number of Second Amended and Restated Warrant Shares underlying such Investor's Warrants’s Second Amended and Restated Warrants and (ii) Section 4(c)), (ii) satisfied or waived all conditions to the closings contemplated by such agreements, agreements and (iii) surrendered their Existing Notes and Existing Warrants for Second Amended and Restated Notes and Replacement Warrants identical to the Second Amended and Restated Notes and Replacement Warrants of the Investor hereunder (other than the Proportionate Changes) Second Amended and (iv) purchased Additional Notes and Additional Warrants identical to the Additional Notes and Additional Restated Warrants of the Investor hereunder (other than the Proportionate Changes). (d) The Company shall have delivered to the Company's transfer agent, with a copy to the Investors, a letter stating that the Irrevocable Transfer Agent Instructions dated July 30, 2006 shall also apply to the Amended and Restated Notes, Replacement Warrant Shares, Additional Notes and Additional Warrants. (e) The Investor shall have received the opinions opinion of Xxxxx and XxxxxxManatt, Pxxxxx & Pxxxxxxx, LLP, the Company's ’s outside counsel, and Xxxx Xxxxx LLPZxx Xxxxxx, Esq., the Company's special Colorado ’s internal general counsel, each dated as of the Closing Date, in substantially the form of EXHIBIT H Exhibit C attached hereto. (e) The Company shall have delivered to the Company’s transfer agent, with a copy to the Investors, Irrevocable Transfer Agent Instructions in the form of Exhibit D attached hereto. (f) The Company shall have delivered to the Investor such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the formation and good standing of the Company and each of its Subsidiaries in such entity's ’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date within 10 days of the Closing Date. (g) The Company shall have delivered to the Investor such Buyer a certificate (or a fax or pdf copy of such certificate) evidencing the Company's ’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable officeoffice or a bring- down certificate from Corporation Service Company) of each jurisdiction in which the Company conducts business and is required to be so qualifiedqualify, as of a date within 10 days of the Closing Date. (h) The Company shall have delivered to the Investor a certified copy of the Articles Certificate of Incorporation as certified by the Secretary of State (or comparable office) of the State of Colorado Delaware (or a fax or pdf copy of such certificate) within ten (10) days of the Closing Date. (i) The Company shall have delivered to the Investor a certificate, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions approving the transactions contemplated hereby as adopted by the Board in a form reasonably acceptable to the Investor, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect as of the Closing, in the form attached hereto as EXHIBIT I.Exhibit E. (j) The representations and warranties of the Company hereunder and under each other Transaction Document shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by this Agreement and the other Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the Closing Date and after giving effect to the terms of this Agreement and the Other Agreements, no default or Event of Default shall have occurred and be continuing as of the Closing Date. The Investor shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Investor in the form attached hereto as EXHIBIT G.Exhibit F. (k) 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 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 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. (l) Subject to obtaining the Stockholder Approval, the The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities. (i) All rights of first refusal, participation, or similar rights that would entitle any Person to participate in the transactions contemplated hereby shall have expired or have been waived. (m) The Company shall have delivered to the Investor such other documents relating to the transactions contemplated by this Agreement as the Investor or its counsel may reasonably request.