Common use of Conditions to Obligations of Purchasers to Effect the Closing Clause in Contracts

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by such Purchaser: (a) At the Closing (unless otherwise specified below) the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 hereto, registered in the name of such Purchaser; (iii) the Investor Rights Agreement, duly executed by the Company; (iv) a legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & Lxxxxxxx, special counsel to the Company, in the form of Exhibit C hereto; and (vi) a certificate of the Secretary of the Company (the "Secretary's Certificate"), attaching a true copy of the Articles of Incorporation and Bylaws of the Company, each as amended and in effect on the Closing Date, and attaching true and complete copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Investor Rights Agreement. (b) All representations and warranties of the Company contained herein shall remain true and correct as of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the The Company shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this Agreement, duly executed 1. An original Note in the original principal amount as is indicated on SCHEDULE 1 to be purchased at the Closing by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 hereto, registered in the name of such Purchaser;. (iii) the 2. The Investor Rights Agreement, in the form attached hereto as EXHIBIT D (the "INVESTOR RIGHTS AGREEMENT"), duly executed by the Company;. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx Olshan Grundman Frome Rosenzweig & LxxxxxxxWolosky LLP ("COMPANY'S Counsxx"), special counsel xxxxxxx to the CompanyXxxxxxx, in the form of Exhibit C hereto; andxn txx xxxx attached hereto as EXHIBIT E. (vi) a 4. A certificate of the Secretary of the Company (the "Secretary's CertificateSECRETARY'S CERTIFICATE"), attaching a as of the Closing Date, in form and substance satisfactory to the Purchasers, certifying as follows: (i) that the Certificate of Designation authorizing the Preferred Stock has been duly filed in the office of the Secretary of State of the State of Nevada, and that attached to the Secretary's Certificate is true and complete copy of the Articles of Incorporation of the Company, as amended, and the Certificate of Designation; (ii) that a true copy of the Bylaws of the Company, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary's Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Investor Rights other Transaction Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Notes and the Preferred Stock and that such resolutions are in full force and effect and that there are no other resolutions of the Board of Directors with respect to the subject matter thereof; (iv) the names and true signatures of the officers of the Company signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 5. A wire transfer representing the Purchasers' reasonable legal fees and other expenses as described in Section 8.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 6. Proof of due filing with the Secretary of State of the State of Nevada of the Certificate of Designation authorizing the Preferred Stock. 7. Company shall have applied to each U.S. securities exchange, interdealer quotation system and other trading market, if any, where its Common Stock is currently listed or qualified for trading or quotation for the listing or qualification of the Conversion Shares and the Warrant Shares for trading or quotation thereon in the time and manner required thereby. 8. A good standing certificate of the Company, of recent date, certified by the Secretary of State of the State of Nevada. 9. Such other documents as the Purchasers shall reasonably request. (b) All representations and warranties of the Purchasers, the Company contained herein and Silicon Valley Bank shall remain true and correct have entered into a Subordination Agreement in the form attached hereto as of EXHIBIT F (the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date"SUBORDINATION AGREEMENT"). (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this AgreementOne or more certificates evidencing the aggregate number of shares of the Preferred Stock, duly executed by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price authorized, issued, fully paid and non-assessable, as set forth is indicated on Schedule 1 heretoto be purchased at the Closing by such Purchaser, registered in the name of such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser; (ii) One or more Warrants, registered in the name of such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as is indicated on Schedule 1. (iii) One or more Warrants to be issued to the placement agents or their designees, registered in the name of such placement agent or their designees, in such denominations as is indicated on Schedule 1 to the Purchase Agreement, pursuant to which they shall be initially entitled to purchase that number of shares of Common Stock as is indicated on Schedule 1 to the Purchase Agreement; 2. The Investor Rights Agreement, in the form attached hereto as Exhibit C (the “Investor Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion from each of Pxxx Wxxxxxxx Bxxxx Gxx Xxxxxxxxxxx & LxxxxxxxXxxxxxxx LLP and Catalyst Corporate Finance Lawyers, special counsel counsels to the CompanySeller, collectively in the form of attached hereto as Exhibit C hereto; andD. (vi) a 4. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching in form and substance satisfactory to the Purchasers, certifying as follows: (i) that the Certificates of Designation authorizing the Preferred Stock have been duly filed in the office of the Secretary of State of the State of Delaware, and that attached to the Secretary’s Certificate are true and complete copy of the Certificate of Incorporation of the Seller, as amended, and the Certificates of Designation; (ii) that a true copy of the Articles of Incorporation and Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary’s Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Preferred Stock and Warrants; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 5. A wire transfer representing the Purchasers’ legal fees and other third-party expenses as described in Section 8.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 6. Proof of due filing with the Secretary of State of the State of Delaware of the Certificates of Designation authorizing the Preferred Stock. 7. Proof of the preliminary approval of the application to the American Stock Exchange for the listing or qualification of the Conversion Shares and the Warrant Shares for trading thereon. 8. Such other documents as the Purchasers shall reasonably request. (b) All representations The Seller shall have entered into a Closing Escrow Agreement with Xxxxxx & Xxxx LLP (the “Escrow Agent”) in the form attached hereto as Exhibit E (the “Closing Escrow Agreement”) pursuant to which the Escrow Agent shall hold certain funds and warranties documents described therein. The Seller shall have also entered into a Post-Closing Escrow Agreement with the Escrow Agent in the form attached hereto as Exhibit F (the “Post-Closing Escrow Agreement”) pursuant to which the Escrow Agent shall hold certain funds described therein to secure the Seller’s potential redemption payment obligations pursuant to Section 14 of the Company contained herein shall remain true and correct as Series B Certificate of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date)Designation. (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this AgreementOne or more certificates evidencing the aggregate number of shares of the Preferred Stock, duly executed by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price authorized, issued, fully paid and non-assessable, as set forth is indicated on Schedule 1 heretoto be purchased at the Closing by such Purchaser, registered in the name of such Purchaser;, in such denominations as is indicated on Schedule 1 for such Purchaser; and (iiiii) One or more certificates evidencing the Warrants, registered in the name of such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as is indicated on Schedule 1. 2. The Investor Rights Agreement, in the form attached hereto as Exhibit C (the “Investor Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxXxxxxxx Coie, special LLP (“Seller’s Counsel”), counsel to the CompanySeller, in the form of attached hereto as Exhibit C hereto; andD. (vi) a 4. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching a in form and substance satisfactory to the Purchasers, certifying as follows: (i) that the Certificate of Designation authorizing the Preferred Stock has been duly filed in the office of the Secretary of State of the State of Washington, and that attached to the Secretary’s Certificate is true and complete copy of the Articles of Incorporation of the Seller, as amended, and the Certificate of Designation; (ii) that a true copy of the Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary’s Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Preferred Stock and Warrants; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 5. Wire transfers to (A) Leerink Xxxxx & Co. representing its fee for services rendered in connection with this transaction and (B) Xxxxxx & Xxxx LLP representing the Purchasers’ reasonable legal fees and other expenses as described in Section 8.2 hereof; such fees may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 6. Proof of due filing with the Secretary of State of the State of Washington of the Certificate of Designation authorizing the Preferred Stock. 7. Seller shall have applied to each U.S. securities exchange, interdealer quotation system and other trading market where its Common Stock is currently listed or qualified for trading or quotation for the listing or qualification of the Conversion Shares for trading or quotation thereon in the time and manner required thereby. 8. Such other documents as the Purchasers shall reasonably request. (b) All representations and warranties of The Seller shall have entered into a Closing Escrow Agreement with Xxxxxx & Xxxx LLP (the Company contained herein shall remain true and correct “Escrow Agent”) in the form attached hereto as of Exhibit E (the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date“Escrow Agreement”). (c) As The staff of Nasdaq shall have verbally confirmed to the Seller that (i) it has reviewed this Agreement, the form of Certificate of Designation, the form of Warrant and form of Investor Rights Agreement and (ii) on the basis of such review, (A) approval by the shareholders of the Closing Date, there shall have been no Material Adverse Effect with respect to Seller of the Company since issuance of the date hereofPreferred Stock and the Conversion Shares and the Warrants and the Warrant Shares is not required and (B) the purchase and sale of the Preferred Stock and the Conversion Shares and the Warrants and the Warrant Shares would not violate any Nasdaq rule or policy or otherwise jeopardize the Seller’s qualification for listing of its securities on Nasdaq. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to the Escrow Agent, for further delivery to each Purchaser of the Purchasers at the Closing pursuant to the terms of the Note Escrow Agreement, the following: (i) this Agreement, duly executed by 1. One or more certificates evidencing the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 heretoNotes, registered in the name of such Purchaser;, in such denominations as is indicated on Schedule 1 for such Purchaser. (iii) the Investor Rights Agreement, duly executed by the Company; (iv) a 2. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxBxxxxxx Xxxxx, special LLP (“Seller’s Counsel”), counsel to the CompanySeller, in the form attached hereto as Exhibit C. 3. A certificate of Exhibit C hereto; andan officer of the Seller (the “Officer’s Certificate”), in form and substance satisfactory to the Purchasers, certifying as follows: (vii) a certificate of that attached to the Secretary of the Company (the "Secretary's Certificate"), attaching a Officer’s Certificate is true and complete copy of the Articles of Incorporation of the Seller, as amended, and the Articles of Amendment; (ii) that a true copy of the Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Officer’s Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Notes, the Note Conversion Shares, the Warrants and the Warrant Shares; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 4. A wire transfer representing the Purchasers’ reasonable legal fees and other expenses as described in Section 9.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 5. Such other documents as the Purchasers shall reasonably request. (b) All representations Seller shall have applied to the TSX Venture Exchange and warranties each U.S. securities exchange, interdealer quotation system and other trading market where its Common Shares are currently listed or qualified for trading or quotation for any necessary approvals for the transactions contemplated herein, the listing or qualification of the Company contained herein shall remain true Conversion Shares and correct as of the Closing Date as though such representations and warranties were made on such date Warrant Shares for trading or quotation thereon (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (c) As of the Closing Date, there which unconditional approvals shall have been no Material Adverse Effect with respect received subject only to the Company since the date hereof. (dsubsequent filing of ordinary course documentation) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authoritiesand manner required thereby.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by such Purchaser: (a) At the Closing (unless otherwise specified below) the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by the Company; (ii) evidence of delivery to an original Note for such Purchaser in the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as principal amount that is set forth on Schedule 1 heretohereto next to such Purchaser’s name; (iii) an original Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock, as set forth next to such Purchaser’s name on Schedule 1 hereto; (iiiiv) the Investor Rights Agreement, duly executed by the Company; (ivv) the Second Security Agreement Amendment, duly executed by the Company and the parties thereto, other than the Purchasers (if any); (vi) a legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxXxxxxxx XxXxxxxxx LLP, special counsel to the Company, in the form of Exhibit C F hereto; and; (vivii) a certificate of the Secretary of the Company (the "“Secretary's ’s Certificate"”), attaching a true copy of the Articles Certificate of Incorporation and Bylaws of the Company, each as amended and in effect on to the Closing Date, and attaching true and complete copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Investor Rights Agreement.other Transaction Documents; and (b) All representations and warranties of the Company contained herein shall remain true and correct in all material respects as of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by such Purchaser: (a) At the Closing (unless otherwise specified below) the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by the Company; (ii) evidence of delivery to an original Note for such Purchaser in the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as principal amount that is set forth on Schedule 1 heretohereto next to such Purchaser's name; (iii) an original Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock, as set forth next to such Purchaser's name on Schedule 1 hereto; (iiiiv) the Investor Rights Agreement, duly executed by the Company; (ivv) the Security Agreement, duly executed by the Company; (vi) a legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxXxxxxxx XxXxxxxxx LLP, special counsel to the Company, in the form of Exhibit C F hereto; and; (vivii) a certificate of the Secretary of the Company (the "Secretary's Certificate"), attaching a true copy of the Articles Certificate of Incorporation and Bylaws of the Company, each as amended and in effect on to the Closing Date, and attaching true and complete copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Investor Rights Agreementother Transaction Documents; and (viii) Evidence satisfactory to the Purchasers that the Board of Directors of the Company has approved the 1 for 5 Split to become effective as soon as practicable following receipt of stockholder approval thereof. (b) All representations and warranties of the Company contained herein shall remain true and correct in all material respects as of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities. (e) The Company shall have de-listed the Common Stock from the American Stock Exchange and shall have provided evidence satisfactory to the Purchasers to such effect.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At The Seller shall deliver or cause to be delivered to each of the Purchasers the following: (i) (A) One or more certificates evidencing the aggregate number of Shares of the Common Stock, duly authorized, issued, fully paid and non-assessable, as is indicated on Schedule 1 to be purchased at the Closing by such Purchaser, registered in the name of such Purchaser, in such denominations as are indicated on Schedule 1 for such Purchaser (unless otherwise specified below“Share Certificates”) or (B) a copy of irrevocable transfer agent instructions (I) that have been delivered to the Seller’s transfer agent and (II) instruct the Seller’s transfer agent to issue the Share Certificates, (III) that are acknowledged in writing by the Company’s transfer agent; provided that, in any case, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by original Share Certificates as soon as practicable following the CompanyClosing; (ii) evidence of delivery to One or more certificates evidencing the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 heretoWarrants, registered in the name of such Purchaser;, in such denominations as is indicated on Schedule 1 for such Purchaser, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as is indicated on Schedule 1 or a facsimile copy of such Warrant Certificates, provided that, in any case, the Company shall deliver or cause to be delivered the original Warrant Certificates as soon as practicable following the Closing. (iii) the Investor 2. The Registration Rights Agreement, in the form attached hereto as Exhibit B (the “Registration Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxKxxxxx Xxxxxx Rxxxxxxx LLP (“Seller’s Counsel”), special counsel to the CompanySeller, in the form attached hereto as Exhibit C. 4. A legal opinion of Sxxxxxx Brignone (“Nevada Counsel”), Nevada counsel to the Seller, in the form attached hereto as Exhibit C hereto; andD. (vi) a 5. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching in form and substance satisfactory to the Purchasers, certifying as follows: (i) that attached to the Secretary’s Certificate is a true and complete copy of the Articles of Incorporation of the Seller, as amended, including any and all certificates of designation; (ii) that a true copy of the Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary’s Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Shares and Warrants; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. (b) All representations 6. Seller shall have applied to each U.S. securities exchange, interdealer quotation system and warranties other trading market where its Common Stock is currently listed or qualified for trading or quotation for the listing or qualification of the Company contained herein shall remain true Shares and correct as of the Closing Date as though such representations Warrant Shares for trading or quotation thereon in the time and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date)manner required thereby. (c) As of 7. Such other documents as the Closing Date, there Purchasers shall have been no Material Adverse Effect with respect to the Company since the date hereofreasonably request. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this AgreementOne or more certificates evidencing the aggregate number of shares of the Preferred Stock, duly executed by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price authorized, issued, fully paid and non-assessable, as set forth is indicated on Schedule 1 heretoto be purchased at the Closing by such Purchaser, registered in the name of such Purchaser;, in such denominations as is indicated on Schedule 1 for such Purchaser(the “Preferred Certificates”), or (ii) a copy of irrevocable transfer agent instructions that (1) have been delivered to the Seller’s transfer agent and (2) instruct the Seller’s transfer agent to issue the Preferred Certificates, (3) are acknowledged in writing by the Seller’s transfer agent and (4) are in form and substance satisfactory to North Sound Capital LLC; provided that, in any case, the Seller shall deliver or cause to be delivered the original Preferred Certificates as soon as practicable following the Closing. (iii) the Investor 2. The Registration Rights Agreement, in the form attached hereto as Exhibit C (the “Registration Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx Ropes & LxxxxxxxXxxx LLP (“Seller’s Counsel”), special counsel to the CompanySeller, in the form of attached hereto as Exhibit C hereto; andD. (vi) a 4. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching in form and substance satisfactory to the Purchasers, certifying as follows: (i) that the Certificate of Designation authorizing the Preferred Stock has been duly filed in the office of the Secretary of State of the State of Delaware, and that attached to the Secretary’s Certificate is true and complete copy of the Certificate of Incorporation of the Seller, as amended, and the Certificate of Designation; (ii) that a true copy of the Articles of Incorporation and Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary’s Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Preferred Stock; (iv) that the condition to the obligations of the Purchasers to effect the closing contained in Section 6.1(c) has been satisfied; (v) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (vi) such other matters as required by this Agreement; and (vii) such other matters as the Purchasers may reasonably request. 5. A wire transfer representing the Purchasers’ reasonable and documented legal fees and other expenses as described in Section 8.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 6. Proof of due filing with the Secretary of State of the State of Delaware of the Certificate of Designation authorizing the Preferred Stock. 7. Such other documents as the Purchasers shall reasonably request. (b) All representations and warranties of The Seller shall have entered into a Closing Escrow Agreement with Xxxxxx & Xxxx LLP (the Company contained herein shall remain true and correct “Escrow Agent”) in the form attached hereto as of Exhibit E (the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date“Escrow Agreement”). (c) As The staff of Nasdaq shall have verbally confirmed to the Seller that (i) it has reviewed this Agreement, the form of Certificate of Designation, the form of Warrant and form of Registration Rights Agreement and (ii) on the basis of such review, (A) approval by the shareholders of the Closing DateSeller of the issuance of the Preferred Stock and the Conversion Shares is not required, there shall have been no Material Adverse Effect (B) the purchase and sale of the Preferred Stock and the Conversion Shares would not violate any Nasdaq rule or policy or otherwise jeopardize the Seller’s qualification for listing of its securities on Nasdaq and (C) the Warrant Shares will not be aggregated with respect the Conversion Shares for purposes of determining the total number of shares of Common Stock issuable without the approval of the shareholders of the Seller pursuant to the Company since the date hereoftransactions contemplated in this Agreement. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to the Escrow Agent, for further delivery to each Purchaser of the Purchasers at the Closing pursuant to the terms of the Note Escrow Agreement, the following: (i) this Agreement, duly executed by 1. One or more certificates evidencing the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 heretoNotes, registered in the name of such Purchaser;, in such denominations as is indicated on SCHEDULE 1 for such Purchaser. (iii) the 2. The Note Investor Rights Agreement, in the form attached hereto as EXHIBIT D (the "NOTE INVESTOR RIGHTS AGREEMENT"), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx Stubbs Alderton & LxxxxxxxMarkiles, special counsel to the CompanyLLP ("SELLER'S COUNSEL"), xxxxsex xx xxe Seller, in the form of Exhibit C hereto; andattached hereto as EXHIBIT E. (vi) a 4. A certificate of the Secretary of the Company Seller (the "Secretary's CertificateSECRETARY'S CERTIFICATE"), attaching a in form and substance satisfactory to the Purchasers, certifying as follows: (i) that the Articles of Amendment authorizing the Preferred Stock has been duly filed in the office of the Secretary of State of the State of Florida, and that attached to the Secretary's Certificate is true and complete copy of the Articles of Incorporation of the Seller, as amended, and the Articles of Amendment; (ii) that a true copy of the Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary's Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Notes, the Note Conversion Shares and the Note Conversion Warrants; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 5. A wire transfer representing the Purchasers' reasonable legal fees and other expenses as described in Section 9.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 6. Proof of due filing with the Secretary of State of the State of Florida of the Articles of Amendment authorizing the Preferred Stock. 7. Such other documents as the Purchasers shall reasonably request. (b) All representations The Seller shall have entered into a Note Closing Escrow Agreement with Wiggin and warranties of Dana LLP (the Company contained herein shall remain true and correct "ESCROW AGENT") in the form attached hxxxxx as of EXXXXXT F (the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date"NOTE ESCROW AGREEMENT"). (c) As of Jon Nix and Robert Chmiel shall have each entered into a nine month Xxxxxxment Xxxx-Xx Xxxeement in the Closing Dateform attached hereto as EXHIBIT G, there and copies thereof shall have been no Material Adverse Effect with respect delivered to the Company since Escrow Agent for further delivery to each of the date hereofPurchasers at the Closing pursuant to the terms of the Note Escrow Agreement. (d) From Seller shall have applied to each U.S. securities exchange, interdealer quotation system and other trading market where its Common Stock is currently listed or qualified for trading or quotation for the date hereof listing or qualification of the Conversion Shares and the Warrant Shares for trading or quotation thereon in the time and manner required thereby. (e) Each of the Purchasers shall have been assigned, pursuant to an assignment dated as of the Closing Date (the "ASSIGNMENT"), the right to purchase, at a purchase price of $0.55 per share (the "OPTIONS"), the number of shares (300,000 shares in the aggregate) of restricted Common Stock pursuant to that certain Stock Option Agreement, dated as of June 30, 2004, by and between Farrald Belote and Arlene Belote, as optionors, and Jon Nix, as xxxxxxxx, xx amendxx, (xxx "XXXXK OPTION AGREEMENT") ax xx xxdicated next to such Purchaser's name in the Assignment. A duly executed copy of the Assignment shall have been delivered to the Closing DateEscrow Agent for further delivery to such Purchasers and for further delivery to the escrow agent for the Stock Option Agreement (the "OPTION ESCROW AGENT"). Each such Purchaser shall have delivered to the Escrow Agent, trading for further delivery to the Option Escrow Agent, a duly executed exercise notice (the "EXERCISE NOTICE") exercising all of the Options assigned to such Purchaser pursuant to the Assignment along with a wire transfer, in immediately available funds, of the Common exercise price for such Options. (f) The closing of the transactions contemplated by the Preferred Stock Purchase Agreement shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authoritiesconsummated.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this Agreement1. An original executed Common Stock Purchase Warrant, duly executed by substantially in the Company; (ii) evidence form of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 Exhibit A hereto, registered in the name of such Purchaser;, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as set forth on Schedule 1. (iii) the 2. The Investor Rights Agreement, in the form attached hereto as Exhibit B (the “Investor Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx or legal opinions from Xxxxxxx X. Xxxxxxx, the Seller’s General Counsel, and/or Akin Gump Xxxxxxx Xxxxx & LxxxxxxxXxxx LLP, special counsel the Seller’s outside counsel, with respect to the Company, matters set forth in the form of Exhibit C hereto; andC. (vi) a 4. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching a true copy of in form and substance satisfactory to the Articles of Incorporation and Bylaws of the CompanyPurchasers, each certifying as amended and in effect on the Closing Date, and attaching true and complete copies of the resolutions of follows: (i) that the Board of Directors of the Company authorizing Seller has duly authorized the execution, delivery and performance of this Agreement and the Investor Rights Agreement. (b) All representations Related Documents, instruments and warranties certificates required to be executed by it in connection herewith and duly approved the consummation of the Company contained herein shall remain true transactions in the manner contemplated hereby including, but not limited to, the authorization and correct as issuance of the Closing Date Warrants and, as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (c) As of the Closing Date, there shall have been no Material Adverse Effect such authorization and approval remain in full force and effect; (ii) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with respect to this Agreement; and (iii) such other matters as the Company since Purchasers may reasonably request. 5. A wire transfer representing the date Purchasers’ legal fees and other third-party expenses as described in Section 7.3 hereof. (d) From the date hereof to the Closing Date6. This Agreement, trading in the Common Stock shall not have been suspended duly executed by the Commission (except for any suspension of trading of limited duration agreed to by Seller. 7. Such other documents as the Company, which suspension Purchasers shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authoritiesreasonably request.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing of each of the following conditions, any of which may be waived, in writing, by such Purchaser: (a) At the Closing (unless otherwise specified below) the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by the Company; (ii) evidence of delivery to an original Series A Note and an original Series B Note for such Purchaser in the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as principal amount that is set forth on Schedule 1 heretohereto next to such Purchaser’s name; (iii) an original Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire up to the number of shares of Common Stock, as set forth next to such Purchaser’s name on Schedule 1 hereto; (iiiiv) the Investor Rights Agreement, duly executed by the Company; (ivv) the Security Agreement, duly executed by the Company; (vi) a legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxXxxxxx and Xxxx LLP, special counsel to the Company, in the form of Exhibit C F hereto; (vii) the Subordination Agreement, duly executed by Silicon Valley Bank and the Company; and (viviii) a certificate of the Secretary of the Company (the "“Secretary's ’s Certificate"”), attaching a true copy of the Articles certificate of Incorporation incorporation and Bylaws bylaws of the Company, each as amended and in effect on to the Closing Date, and attaching true and complete copies of the resolutions of the Board of Directors of the Company authorizing the execution, delivery and performance of this Agreement and the Investor Rights Agreementother Transaction Documents. (b) All representations and warranties of the Company contained herein in the Transaction Documents shall remain true and correct in all material respects as of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York Jersey State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this AgreementOne or more certificates evidencing the aggregate number of shares of the Preferred Stock, duly executed by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price authorized, issued, fully paid and non-assessable, as set forth is indicated on Schedule 1 heretoto be purchased at the Closing by such Purchaser, registered in the name of such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser; (iiiii) One or more certificates evidencing the Warrants, registered in the name of such Purchaser, in such denominations as is indicated on Schedule 1 for such Purchaser, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as is indicated on Schedule 1. 2. The Investor Rights Agreement, in the form attached hereto as Exhibit C (the "Investor Rights Agreement"), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxXxxxxx Xxxxxx Xxxxx Xxxxxxxx ("Seller's Counsel"), special counsel to the CompanySeller, in the form attached hereto as Exhibit D. 4. A legal opinion of Xxxxxxx Brignone ("Nevada Counsel"), Nevada counsel to the Seller, in the form attached hereto as Exhibit C hereto; andE. (vi) a 5. A certificate of the Secretary of the Company Seller (the "Secretary's Certificate"), attaching a in form and substance satisfactory to the Purchasers, certifying as follows: (i) that the Certificate of Designation authorizing the Preferred Stock has been duly filed in the office of the Secretary of State of the State of Nevada, and that attached to the Secretary's Certificate is true and complete copy of the Articles of Incorporation of the Seller, as amended, and the Certificate of Designation; (ii) that a true copy of the Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary's Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Preferred Stock; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 6. A wire transfer representing the Purchasers' reasonable legal fees and other expenses as described in Section 8.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 7. Proof of due filing with the Secretary of State of the State of Nevada of the Certificate of Designation authorizing the Preferred Stock. 8. Seller shall have applied to each U.S. securities exchange, interdealer quotation system and other trading market where its Common Stock is currently listed or qualified for trading or quotation for the listing or qualification of the Conversion Shares and the Warrant Shares for trading or quotation thereon in the time and manner required thereby. 9. Such other documents as the Purchasers shall reasonably request. (b) All representations and warranties The Seller shall have entered into an Escrow Agreement with Xxxxxx & Xxxx LLP (the "Escrow Agent") in the form attached hereto as Exhibit F (the "Escrow Agreement") pursuant to which the Escrow Agent shall hold certain funds described therein to secure the Seller's potential redemption payment obligations pursuant to Section 14 of the Company contained herein shall remain true and correct as Certificate of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date)Designation. (c) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company since the date hereof. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At the Closing (unless otherwise specified below) the Company The Seller shall deliver or cause to be delivered to each Purchaser of the Purchasers the following: (i) this Agreement, duly executed by the Company; (ii) evidence of delivery to the Company's transfer agent of irrevocable instructions to issue a A certificate evidencing a number of Shares the Note in the principal amount equal to such Purchaser's Subscription Amount divided by the Per Share ’s Purchase Price as set forth on Schedule 1 hereto1, registered in the name of such Purchaser;; and (iiiii) A certificate evidencing the Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as set forth on Schedule 1. 2. The Investor Rights Agreement, in the form attached hereto as Exhibit C (the “Investor Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx from Weycer, Kaplan, Pulaski & LxxxxxxxXxxxx, special P.C., counsel to the CompanySeller, in the form of attached hereto as Exhibit C hereto; andD-1. (vi) a 4. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching in form and substance satisfactory to the Purchasers, certifying as follows: (i) that attached thereto is a true and complete copy of the Certificate of Incorporation of the Seller, as amended, to the Closing Date; (ii) that attached thereto is a true copy of the Articles of Incorporation and Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching ; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Notes and Warrants and that such resolutions are in full force and effect as of the Closing Date and that no other resolutions exist regarding the subject matter thereof; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. 5. A wire transfer representing the Purchasers’ legal fees and other third-party expenses as described in Section 8.2 hereof; such fee may, at the election of the Purchasers, be paid out of the funds due from the Purchasers at the Closing. 6. This Agreement, duly executed by the Seller. 7. Such other documents as the Purchasers shall reasonably request. (b) The Seller shall have entered into a Closing Escrow Agreement with Xxxxxx and Xxxx LLP (the “Escrow Agent”) in the form attached hereto as Exhibit E (the “Closing Escrow Agreement”) pursuant to which the Escrow Agent shall hold certain funds and documents described therein. (c) All representations and warranties of the Company Seller contained herein shall remain true and correct as of the Closing Date as though such representations and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date). (cd) As of the Closing Date, there shall have been no Material Adverse Effect with respect to the Company Seller since the date hereof. (de) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Markettrading market, nor shall a banking moratorium have been declared either by the United States or New York State authorities. (f) Evidence satisfactory to North Sound Capital LLC that the Seller has duly filed an application with the American Stock Exchange to list the Warrant Shares for trading thereon. (g) A certificate executed by the chief executive officer or the chief financial officer of the Seller certifying to the Purchasers that: (i) OJSC Caspi Neft TME, a Kazakhstan legal entity (“Caspi Neft”) is an open joint stock company duly registered and validly existing under Kazakhstan law; (ii) Caspi Neft has the full legal power as a Kazakhstan open joint stock company to own or lease property and to conduct its business as it is currently conducted; (iii) The charter capital of Caspi Neft consists of 19,100 ordinary shares, par value 1,000 tenge. The shares of Caspi Neft have been duly authorized, issued and properly registered with the Agency of the Republic of Kazakhstan for Regulation and Supervision of the Financial Market and Financial Organizations; and (iv) The execution and delivery of this Agreement by the Seller, and performance by the Seller of the transactions contemplated by this Agreement (i) does not violate any provision of the constituent documents of Caspi Neft; (ii) does not violate Kazakhstan law applicable to Caspi Neft; and (iii) does not require any filing, approval, registration, authorization or other action by any person, entity or government body in Kazakhstan.

Conditions to Obligations of Purchasers to Effect the Closing. The obligations of each a Purchaser to effect the Closing and the transactions contemplated by this Agreement shall be subject to the satisfaction at or prior to the Closing Closing, of each of the following conditions, any of which may be waived, in writing, by such a Purchaser: (a) At The Seller shall deliver or cause to be delivered to each of the Purchasers the following: (i) (A) One or more certificates evidencing the aggregate number of Shares of the Common Stock, duly authorized, issued, fully paid and non-assessable, as is indicated on Schedule 1 to be purchased at the Closing by such Purchaser, registered in the name of such Purchaser, in such denominations as are indicated on Schedule 1 for such Purchaser (unless otherwise specified below“Share Certificates”) or (B) a copy of irrevocable transfer agent instructions (I) that have been delivered to the Seller’s transfer agent and (II) instruct the Seller’s transfer agent to issue the Share Certificates, (III) that are acknowledged in writing by the Company’s transfer agent; provided that, in any case, the Company shall deliver or cause to be delivered to each Purchaser the following: (i) this Agreement, duly executed by original Share Certificates as soon as practicable following the CompanyClosing; (ii) evidence of delivery to One or more certificates evidencing the Company's transfer agent of irrevocable instructions to issue a certificate evidencing a number of Shares equal to such Purchaser's Subscription Amount divided by the Per Share Purchase Price as set forth on Schedule 1 heretoWarrants, registered in the name of such Purchaser;, in such denominations as is indicated on Schedule 1 for such Purchaser, pursuant to which such Purchaser shall be initially entitled to purchase that number of shares of Common Stock as is indicated on Schedule 1 or a facsimile copy of such Warrant Certificates, provided that, in any case, the Company shall deliver or cause to be delivered the original Warrant Certificates as soon as practicable following the Closing. (iii) the Investor 2. The Registration Rights Agreement, in the form attached hereto as Exhibit B (the “Registration Rights Agreement”), duly executed by the Company;Seller. (iv) a 3. A legal opinion of Pxxx Wxxxxxxx Bxxxx Gxx & LxxxxxxxXxxxxx Xxxxxx Xxxxxxxx LLP (“Seller’s Counsel”), special counsel to the CompanySeller, in the form attached hereto as Exhibit C. 4. A legal opinion of Xxxxxxx Brignone (“Nevada Counsel”), Nevada counsel to the Seller, in the form attached hereto as Exhibit C hereto; andD. (vi) a 5. A certificate of the Secretary of the Company Seller (the "“Secretary's ’s Certificate"”), attaching in form and substance satisfactory to the Purchasers, certifying as follows: (i) that attached to the Secretary’s Certificate is a true and complete copy of the Articles of Incorporation of the Seller, as amended, including any and all certificates of designation; (ii) that a true copy of the Bylaws of the CompanySeller, each as amended and in effect on to the Closing Date, and attaching is attached to the Secretary’s Certificate; (iii) that attached thereto are true and complete copies of the resolutions of the Board of Directors of the Company Seller authorizing the execution, delivery and performance of this Agreement and the Investor Rights Related Documents, instruments and certificates required to be executed by it in connection herewith and approving the consummation of the transactions in the manner contemplated hereby including, but not limited to, the authorization and issuance of the Shares and Warrants; (iv) the names and true signatures of the officers of the Seller signing this Agreement and all other documents to be delivered in connection with this Agreement; (v) such other matters as required by this Agreement; and (vi) such other matters as the Purchasers may reasonably request. (b) All representations 6. Seller shall have applied to each U.S. securities exchange, interdealer quotation system and warranties other trading market where its Common Stock is currently listed or qualified for trading or quotation for the listing or qualification of the Company contained herein shall remain true Shares and correct as of the Closing Date as though such representations Warrant Shares for trading or quotation thereon in the time and warranties were made on such date (except those representations and warranties that address matters only as of a particular date will remain true and correct as of such date)manner required thereby. (c) As of 7. Such other documents as the Closing Date, there Purchasers shall have been no Material Adverse Effect with respect to the Company since the date hereofreasonably request. (d) From the date hereof to the Closing Date, trading in the Common Stock shall not have been suspended by the Commission (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg Financial Markets shall not have been suspended or limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on any Trading Market, nor shall a banking moratorium have been declared either by the United States or New York State authorities.