Common use of Put Closing Date Clause in Contracts

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: i. The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, shall be in full force and effect and shall not have been amended since their respective Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of California, and a copy thereof certified by the Secretary of State of the State of California shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing). ii. The Common Stock shall be authorized for trading on one of the Exchanges, trading in the Common Stock shall not have been suspended by the SEC or such Exchange and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock to be sold at the Put Closing shall be listed upon such Exchange. iii. The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such Put Closing Date regarding the representation contained in Section 3(c) above. iv. Such Buyer shall have received the opinion of the Company's counsel dated as of such Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E attached hereto. v. The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, being purchased by such Buyer at the Put Closing. vi. The Board of Directors of the Company shall not have amended the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to Buyers. vii. As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Stock, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock and Warrants, as the case may be, including for such purposes the Put Preferred Stock to be issued at such Put Closing. viii. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of such Put Closing Date. x. The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of California within ten days of the Put Closing Date. xi. The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Articles of Incorporation and (C) By-laws, each as in effect at the Put Closing. xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Shares at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with prior written notice thereof: i. (i) The Company shall have complied with the requirements of Section 1(e) and all of the Put Notice Conditions set forth in Section 1(f) shall have been satisfied as of the Put Closing Date. (ii) The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, Designations shall be in full force and effect and shall not have been amended since their respective the Initial Closing DatesDate, and a copy of each the Certificate of them Designations that has been certified by the Secretary of State of the State of California Delaware shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of California, and a copy thereof certified by the Secretary of State of the State of California shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing). ii. (iii) The Common Stock shall be authorized for trading quotation on one of the ExchangesNasdaq National Market, NYSE or AMEX, trading in the Common Stock issuable upon conversion of the Put Preferred Shares shall not have been be suspended by the SEC SEC, The Nasdaq Stock Market, Inc., NYSE or such Exchange AMEX on the Put Closing Date and notification for listing of all of the Conversion Shares issuable upon conversion of the Put Preferred Stock Shares to be sold at the Put Closing shall be listed upon such Exchangehave been delivered to the Nasdaq National Market, NYSE or AMEX. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant Transaction Documents or the Certificate of Determination Designations to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Financial Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such Put Closing Date regarding the representation contained in Section 3(c) above). iv. (v) Such Buyer shall have received the opinion of the Company's counsel Mintx Xxxix Opinion, dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E attached hereto. v. (vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, Shares being purchased by such Buyer at the Put Closing. vi. (vii) The Board of Directors of the Company shall not have amended the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to BuyersResolutions. vii. (viii) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockShares, a number of shares of Common Stock equal to at least 150200% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock and Warrants, as the case may beShares, including for such purposes the Put any Preferred Stock Shares to be issued at such Put Closing. viii. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agentagent and shall be in effect as of the Put Closing Date. ix. (x) The Company shall have delivered to such Buyer a copy of a certificate evidencing the incorporation and good standing of the company Company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of such the Put Closing Date. x. (xi) The Company shall have delivered to such Buyer a certified secretary's certificate or an assistant secretary's certificate (so long as the assistant secretary is duly authorized to deliver such certificate) certifying as to (a) the resolutions, (b) the Certificate of Incorporation and (c) Bylaws, each as in effect at the Put Closing. (xii) The Company shall have delivered to such Buyer a copy of its Articles Certificate of Incorporation as certified by the Secretary of State of the State of California Delaware within ten days of the Put Closing Date. xi. The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Axiii) the Resolutions, (B) certified copies of its Articles of Incorporation and (C) By-laws, each as in effect at the Put Closing. xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing dateDate. xiii. (xiv) The Company shall have executed and delivered to such Buyer a registration rights agreement with regard to schedule, certified by the Series C Preferred Stock substantially identical to Company's Chief Financial Officer, confirming satisfaction of the condition set forth in clause (and pari passu withvii) the Registration Rights Agreementof Section 1(f). xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. (xv. ) The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Shares and the related Warrants at the each Put Closing is subject to the satisfaction, at or before the applicable Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: i. (i) The Company shall have complied with the requirements of Section 1(d) and all of the Put Notice Conditions set forth in Section 1(e) shall have been satisfied. (ii) The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicableDesignations, shall be in full force and effect and shall not have been amended since their respective the Initial Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of CaliforniaDate, and a copy thereof certified by the Secretary of State of the State of California Delaware shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)Buyer. ii. (iii) The Common Stock shall be authorized for trading listing on one of the ExchangesNYSE, trading in the Common Stock issuable upon conversion of the Put Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC SEC, The Nasdaq SmallCap Market, The Nasdaq Stock Market, Inc. or such Exchange NYSE and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock Shares to be sold at the Put Closing shall be listed upon such ExchangeThe Nasdaq SmallCap Market, the Nasdaq National Market or NYSE. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant Transaction Documents or the Certificate of Determination Designations to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such the Put Closing Date regarding the representation contained in Section 3(c) above. iv. (v) Such Buyer shall have received the opinion of the Company's counsel Winston & Xxxxxx dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E attached hereto.EXHIBIT C; and such Buyer shall have received the opinion of Xxxxxx X. Xxxxxx, Esq. dated as of such Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer in substantially the form of EXHIBIT F. v. (vi) The Company shall have executed and delivered to such Buyer (i) the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred StockShares, and (ii) the Warrants being purchased by such Buyer at the Put Closing. vi. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended amended, the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to BuyersResolutions. vii. (viii) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockShares and exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock Shares and the Warrants, as the case may berespectively, including for such purposes the Put Preferred Stock Shares and the Warrants to be issued at such Put Closing. viii. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit EXHIBIT D, attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company Company and each subsidiary Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of such the Put Closing Date. x. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles Certificate of Incorporation as certified by the Secretary of State of the State of California Delaware within ten days of the Put Closing Date. xi. (xii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Articles Certificate of Incorporation and (C) By-laws, each as in effect at the Put Closing. xii. (xiii) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing dateDate. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu withxiv) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Shares at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: i. (i) The Certificate Company shall have complied with the requirements of Determination for each Section 1(d) and all of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, Put Notice Conditions set forth in Section 1(e) shall have been satisfied. (ii) The Articles Supplementary shall be in full force and effect and shall not have been amended since their respective the Put Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of CaliforniaDate, and a copy thereof certified by the Secretary of State of the State of California Maryland shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)Buyer. ii. (iii) The Common Stock shall be authorized for trading listing on one of AMEX, the ExchangesNasdaq National Market or NYSE, trading in the Common Stock issuable upon conversion of the Put Preferred Shares and the exercise of the related Warrants to be traded on AMEX, the Nasdaq National Market or NYSE shall not have been suspended by the SEC SEC, AMEX, The Nasdaq Stock Market, Inc. or such Exchange NYSE and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock Shares and exercise of the related Warrants to be sold at the Put Closing shall be listed upon such ExchangeAMEX, the Nasdaq National Market or NYSE. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 33 above, in which case case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such the Put Closing Date regarding the representation contained in Section 3(c) above. iv. (v) Such Buyer shall have received the opinion of the Company's counsel dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E C attached hereto. v. The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, being purchased by such Buyer at the Put Closing. vi. The Board of Directors of the Company shall not have amended the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to Buyers. vii. As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Stock, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock and Warrants, as the case may be, including for such purposes the Put Preferred Stock to be issued at such Put Closing. viii. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of such Put Closing Date. x. The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of California within ten days of the Put Closing Date. xi. The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Articles of Incorporation and (C) By-laws, each as in effect at the Put Closing. xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Shares at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: i. (i) The Company shall have complied with the requirements of Section 1(d) and all of the Put Notice Conditions set forth in Section 1(e) shall have been satisfied. (ii) The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, Designations shall be in full force and effect and shall not have been amended since their respective the Put Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of CaliforniaDate, and a copy thereof certified by the Secretary of State of the State of California Delaware shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)Buyer. ii. (iii) The Common Stock shall be authorized for trading quotation on one of the ExchangesNasdaq National Market, The Nasdaq SmallCap Market, NYSE or AMEX, trading in the Common Stock issuable upon conversion of the Put Preferred Shares and the exercise of the related Warrants to be traded on the Nasdaq National Market, The Nasdaq SmallCap Market, NYSE or AMEX shall not have been suspended by the SEC SEC, The Nasdaq Stock Market, Inc., NYSE or such Exchange AMEX and all of the Conversion Shares and Warrant Shares issuable upon conversion of the Put Preferred Stock Shares and exercise of the related Warrants to be sold at the Put Closing shall be listed upon such Exchangethe Nasdaq National Market, The Nasdaq SmallCap Market, NYSE or AMEX. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 33 above, in which case case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such the Put Closing Date regarding the representation contained in Section 3(c) above. iv. (v) Such Buyer shall have received the opinion of the Company's counsel dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E EXHIBIT C attached hereto. v. (vi) The Company shall have executed and delivered to such Buyer the Warrants and the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, Shares being purchased by such Buyer at the Put Closing. vi. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended amended, the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant in a form reasonably acceptable to resolutions in form and substance reasonably satisfactory to Buyerssuch Buyer. vii. (viii) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockShares and the exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or and exercise in full of the then outstanding Series A Preferred Stock and Warrantsfull, as the case may be, of the then outstanding Preferred Shares and Warrants, including for such purposes the Put any Preferred Stock Shares and Warrants to be issued at such Put Closing. viii. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, EXHIBIT D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company Company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten 10 days of such the Put Closing DateClosing. x. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of California within ten days of the Put Closing Date. xi. The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Articles Certificate of Incorporation and (C) By-lawsBylaws, each as in effect at the Put Closing. (xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer Subscriber hereunder to purchase the Put Preferred Stock Shares at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each BuyerSubscriber's sole benefit and may be waived by such Buyer Subscriber at any time in its sole discretion: i. (i) The Company shall have complied with the requirements of Section l(c) and all of the Put Notice Conditions set forth in Section l(d) shall have been satisfied. (ii) The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, Designations shall be in full force and effect and shall not have been amended since their respective the Initial Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of CaliforniaDate, and a copy thereof certified by the Secretary of State of the State of California Florida shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)Subscriber. ii. (iii) The Common Stock shall be authorized for trading quotation on one of the ExchangesNasdaq National Market, NYSE or AMEX, trading in the Common Stock shall not have been suspended by the SEC SEC, The Nasdaq Stock Market, Inc., NYSE or such Exchange AMEX and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock to be sold at Shares and all of the Put Closing Warrant Shares shall be listed upon the Nasdaq National Market, NYSE or AMEX and the Subscribers shall have received evidence of such Exchangelisting in a form acceptable to the Subscribers. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company contained in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 33 above, in which case case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination Agreement to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer Subscriber shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer Subscriber including, without limitation, an update as of such the Put Closing Date regarding the representation representations contained in Section Sections 3(c) and 3(g) above. iv. (v) Such Buyer Subscriber shall have received the opinion of the Company's counsel dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer Subscriber and in substantially the form of Exhibit E D attached hereto. v. (vi) The Company shall have executed and delivered to such Buyer Subscriber the Stock Certificates (in such denominations as such Buyer Subscriber shall request) for the Put Preferred Stock, Shares being purchased by such Buyer Subscriber at the Put Closing and the Warrants to be issued to such subscriber at the Put Closing. vi. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended amended, the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant in a form reasonably acceptable to resolutions in form and substance reasonably satisfactory to Buyerssuch Subscriber. vii. (viii) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockShares and exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock Shares and upon exercise of the then outstanding Warrants, as the case may be, including for such purposes the Put any Preferred Stock Shares and Warrants to be issued at such Put Closing. viii. The Irrevocable Transfer Agent Instructions(ix) During the period beginning on and including the Put Share Notice Date and ending on and including the Put Closing Date, in the form Market Price of Exhibit D, attached hereto, the Common Stock shall have been delivered to and acknowledged in writing by not be less than the Company's transfer agent.greater of (A) $6.00 or (B) 75% of the Market Price on the Put Share Notice Date; ix. (x) The Company shall have delivered to such Buyer Subscriber a certificate evidencing the incorporation and good standing of the company Company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten 10 days of such the Put Closing DateClosing. x. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of California within ten days of the Put Closing Date. xi. The Company shall have delivered to such Buyer Subscriber a secretary's certificate certifying as to (Aa) the Resolutions, (Bb) certified copies of its the Articles of Incorporation and (Cc) By-laws, each as in effect at the Put Closing. (xii. ) The Registration Statement with respect to the Common Stock issuable upon conversion of the Initial Preferred Shares and the Initial Warrant Shares shall have been declared effective under the 1933 Act by the SEC for at least sixty (60) trading days prior to the Put Closing Date and including the Put Closing Date. (xiii) The trading in securities generally shall not have been suspended by the National Association of Securities Dealers, Inc. (the "NASD") and trading in the Common Stock shall not have been suspended by the SEC or the NASD. (xiv) The representations of the Company set forth in Section 3(h) hereof shall be true and correct as of the Put Closing Date. (xv) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer Subscriber such other documents relating to the transactions contemplated by this Agreement as such Buyer Subscriber or its counsel may reasonably request. (xvi. The ) During the period beginning on the Initial Closing Date and ending on and including the Put Closing Date, the Company shall have taken at all actions necessary so that the issuance times delivered Conversion Shares upon conversion of the Series C Preferred Stock will Shares on a timely basis as set forth in the Certificate of Designations and otherwise shall have been in compliance with and shall not constitute a breach have breached the provisions of the Company's obligations under Transaction Documents and the rules or regulations Certificate of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes tradedDesignations. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Shares at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: i. (i) The Company shall have complied with the requirements of Section 1(d) and all of the Put Notice Conditions set forth in Section 1(e) shall have been satisfied. (ii) The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, Designations shall be in full force and effect and shall not have been amended since their respective the Put Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of CaliforniaDate, and a copy thereof certified by the Secretary of State of the State of California Delaware shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)Buyer. ii. (iii) The Common Stock shall be authorized for trading quotation on one of the ExchangesNasdaq National Market, NYSE or AMEX, trading in the Common Stock issuable upon conversion of the Put Preferred Shares to be traded on the Nasdaq National Market, NYSE or AMEX shall not have been suspended by the SEC SEC, The Nasdaq Stock Market, Inc., NYSE or such Exchange AMEX and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock Shares to be sold at the Put Closing shall be listed upon such Exchangethe Nasdaq National Market, NYSE or AMEX. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 33 above, in which case case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such the Put Closing Date regarding the representation contained in Section 3(c) above. iv. (v) Such Buyer shall have received the opinion of the Company's counsel dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E C attached hereto. v. (vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, Shares being purchased by such Buyer at the Put Closing. vi. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended amended, the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant in a form reasonably acceptable to resolutions in form and substance reasonably satisfactory to Buyerssuch Buyer. vii. (viii) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockShare, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock and Warrants, as the case may beShares, including for such purposes the Put any Preferred Stock Shares to be issued at such Put Closing. viii. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company Company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of such Put Closing Date. x. The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of California within ten 10 days of the Put Closing DateClosing. (xi. ) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutionsresolutions, (Bb) certified copies of its Articles the Certificate of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Put Closing. (xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Debentures and the Put Warrants at the Put Closing is subject to receipt of the Put Notice and the satisfaction, at or before the Put Closing Closing Exhibit 4.1 Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretiondiscretion by providing the Company with written notice thereof: i. (i) The Certificate Company shall have complied with the requirements of Determination for each Section l(c) and all of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, shall be Put Notice Conditions set forth in full force and effect and shall not have been amended since their respective Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California Section l(d) shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of California, and a copy thereof certified by the Secretary of State of the State of California shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)satisfied. (ii. ) The Common Stock shall be authorized for trading quotation on one of the ExchangesNasdaq SmallCap Market or the Nasdaq National Market, as applicable; trading in the Common Stock issuable upon conversion of the Put Debentures and upon exercise of the Put Warrants, which are to be traded on the Nasdaq SmallCap Market or the Nasdaq National Market, as applicable, shall not have been suspended by the SEC or such Exchange The Nasdaq Stock Market, Inc.; and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock Debentures, and all of the Warrant Shares issuable upon exercise of the Put Warrants, to be sold at the Put Closing shall be listed upon such Exchangethe Nasdaq SmallCap Market or the Nasdaq National Market, as applicable. (iii. ) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such the Put Closing Date regarding the representation contained in Section 3(c) above). (iv. ) Such Buyer shall have received the opinion of the Company's counsel dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E D attached hereto. v. (v) The Company shall have executed and delivered to such Buyer the Stock Certificates Put Debentures and the Put Warrants (in such denominations as such Buyer shall request) for the Put Preferred Stock, being purchased by such Buyer at the Put Closing. (vi. ) The Board of Directors of the Company shall have adopted, and shall not have amended amended, the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to Buyers.Resolutions. Exhibit 4.1 (vii. ) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockDebentures and the exercise of the Warrants, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock Debentures and upon exercise of the then outstanding Warrants, as the case may be, including for such purposes the Put Preferred Stock any Debentures and any Warrants to be issued at such Put Closing. (viii. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. ) The Company shall have delivered to such Buyer a certificate evidencing the status of the Company and the incorporation and good standing of the company and each subsidiary of the Company in the state of such corporation's state jurisdiction of incorporation issued by the Secretary Ministry of State of such state of incorporation as of a date within ten days of such Put Closing Date. x. The Company shall have delivered Consumer and Commercial Relations (Ontario), with respect to such Buyer a certified copy of its Articles of Incorporation as certified by the Company, and the Secretary of State of the State of California Nevada, with respect to the subsidiaries of the Company, as of a date within ten 10 days of the Put Closing DateClosing. xi. (ix) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (Aa) the Resolutions, (Bb) certified copies of its the Articles of Incorporation and (Cc) By-lawsBylaws, each as in effect at the Put Closing. xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu withx) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company (xi) No suit, action or other proceeding shall have taken all actions necessary so that been commenced (and be pending) which seeks to restrain or prohibit or questions the issuance validity or legality of the Series C Preferred Stock will not constitute a breach transactions contemplated by the Transaction Documents, nor shall any such suit, action or proceeding be threatened. (xii) All consents, Permits, authorizations, approvals, waivers and amendments required for the consummation of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby by the Transaction Documents shall not violate any law, regulation or order then in effect and applicable to Buyers or the Companyhave been obtained.

Put Closing Date. The obligation of each Buyer hereunder to purchase the Put Preferred Stock Shares at the Put Closing is subject to the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion: i. (i) The Company shall have complied with the requirements of Section 1(d) and all of the Put Notice Conditions set forth in Section 1(e) shall have been satisfied. (ii) The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicableDesignations, shall be in full force and effect and shall not have been amended since their respective the Put Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California shall have been delivered to such Buyer. The Certificate of Determination for the Series C Preferred Stock shall have been executed by the Company and filed with the Secretary of State of the State of CaliforniaDate, and a copy thereof certified by the Secretary of State of the State of California Delaware shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing)Buyer. ii. (iii) The Common Stock shall be authorized for trading quotation on one of The Nasdaq SmallCap Market or the ExchangesNasdaq National Market or listing on NYSE, trading in the Common Stock issuable upon conversion of the Put Preferred Shares to be traded on The Nasdaq SmallCap Market, the Nasdaq National Market or NYSE shall not have been suspended by the SEC SEC, The Nasdaq SmallCap Market, The Nasdaq Stock Market, Inc. or such Exchange NYSE and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock Shares to be sold at the Put Closing shall be listed upon such ExchangeThe Nasdaq SmallCap Market, the Nasdaq National Market or NYSE. iii. (iv) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put 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 this Agreement, the Registration Rights Agreement, the Warrant Transaction Documents or the Certificate of Determination Designations to be performed, satisfied or complied with by the Company at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of such the Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such the Put Closing Date regarding the representation contained in Section 3(c) above. iv. (v) Such Buyer shall have received the opinion of the Company's counsel Gray Xxxy Xxxx & Freidenrich dated as of such the Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E C attached hereto. v. (vi) The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, Shares being purchased by such Buyer at the Put Closing. vi. (vii) The Board of Directors of the Company shall have adopted, and shall not have amended amended, the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to BuyersResolutions. vii. (viii) As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred StockShares, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock and Warrants, as the case may beShares, including for such purposes the Put Preferred Stock Shares to be issued at such Put Closing. viii. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, D attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company Company and each subsidiary Subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten 10 days of such the Put Closing Date. x. (xi) The Company shall have delivered to such Buyer a certified copy of its Articles Certificate of Incorporation as certified by the Secretary of State of the State of California Delaware within ten days of the Put Closing Date. xi. (xii) The Company shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Articles Certificate of Incorporation and (C) By-laws, each as in effect at the Put Closing. xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. (xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to (and pari passu with) the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to the transactions contemplated by this Agreement as such Buyer or its counsel may reasonably request. xvi. The Company shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes traded. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.

Put Closing Date. The obligation of the Company hereunder to issue and sell the Put Debentures and Put Warrants to each Buyer hereunder to purchase the Put Preferred Stock at the Put Closing is subject to the Company's delivery of the Put Notice and the satisfaction, at or before the Put Closing Date, of each of the following conditions, provided that these conditions are for each Buyerthe Company's sole benefit and may be waived by such Buyer the Company at any time in its sole discretiondiscretion by providing each Buyer with written notice thereof: i. The Certificate of Determination for each of the Series A Preferred Stock and the Series B Preferred Stock, as applicable, shall be in full force and effect and shall not have been amended since their respective Closing Dates, and a copy of each of them certified by the Secretary of State of the State of California (i) Such Buyer shall have been delivered to such Buyer. The Certificate of Determination the Company the Purchase Price for the Series C Preferred Stock shall have been executed Put Debentures and Put Warrants being purchased by the Company and filed with the Secretary of State of the State of California, and a copy thereof certified by the Secretary of State of the State of California shall have been delivered to such Buyer (and containing a Fixed Conversion Price equal to 115% of the average closing price of the Common Stock on its principal exchange or market for the ten (10) trading days immediately preceding the date of the Put Closing). ii. The Common Stock shall be authorized for trading on one of the Exchanges, trading in the Common Stock shall not have been suspended by the SEC or such Exchange and all of the Conversion Shares issuable upon conversion of the Put Preferred Stock to be sold at the Put Closing shall be listed upon such Exchangeby wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. iii. (ii) The representations and warranties of the Company, including the absence of any Material Adverse Effect since the Initial Closing Date, such Buyer in this Agreement shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3, in which case such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Put Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) ), and the Company such Buyer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement, the Registration Rights Agreement, the Warrant or the Certificate of Determination Transaction Documents to be performed, satisfied or complied with by the Company such Buyer at or prior to the respective Put Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of such Put Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer including, without limitation, an update as of such Put Closing Date regarding the representation contained in Section 3(c) above. iv. Such Buyer shall have received the opinion of the Company's counsel dated as of such Put Closing Date, in form, scope and substance reasonably satisfactory to such Buyer and in substantially the form of Exhibit E attached hereto. v. The Company shall have executed and delivered to such Buyer the Stock Certificates (in such denominations as such Buyer shall request) for the Put Preferred Stock, being purchased by such Buyer at the Put Closing. vi. The Board of Directors of the Company shall not have amended the Resolutions and shall have approved the issuance of the Put Preferred Stock pursuant to resolutions in form and substance reasonably satisfactory to Buyers. vii. As of the Put Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Stock, a number of shares of Common Stock equal to at least 150% of the number of shares of Common Stock which would be issuable upon conversion or exercise in full of the then outstanding Series A Preferred Stock and Warrants, as the case may be, including for such purposes the Put Preferred Stock to be issued at such Put Closing. viii. The Irrevocable Transfer Agent Instructions, in the form of Exhibit D, attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. ix. The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the company and each subsidiary in the state of such corporation's state of incorporation issued by the Secretary of State of such state of incorporation as of a date within ten days of such Put Closing Date. x. The Company shall have delivered to such Buyer a certified copy of its Articles of Incorporation as certified by the Secretary of State of the State of California within ten days of the Put Closing Date. xi. The Company (iii) No suit, action or other proceeding shall have delivered to such Buyer a secretary's certificate certifying as to (A) the Resolutions, (B) certified copies of its Articles of Incorporation and (C) By-laws, each as in effect at the Put Closing. xii. The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Put Closing date. xiii. The Company shall have executed and delivered a registration rights agreement with regard to the Series C Preferred Stock substantially identical to been commenced (and pari passu withbe pending) which seeks to restrain or prohibit or questions the Registration Rights Agreement. xiv. The Company shall have satisfied the financial conditions as identified on Exhibit H, attached hereto. xv. The Company shall have delivered to such Buyer such other documents relating to validity or legality of the transactions contemplated by this Agreement as the Transaction Documents, nor shall any such Buyer suit, action or its counsel may reasonably requestproceeding be threatened. xvi. The Company (iv) All consents, Permits, authorizations, approvals, waivers and amendments required for the consummation of the transactions contemplated by the Transaction Documents shall have taken all actions necessary so that the issuance of the Series C Preferred Stock will not constitute a breach of the Company's obligations under the rules or regulations of Nasdaq or any other principal securities exchange or trading market upon which the Common Stock becomes tradedbeen obtained. xvii. The aggregate of (i) the Conversion Shares and Warrant Shares issued prior to the Put Closing and (ii) the Conversion Shares and Warrant Shares which may be issued upon conversion or exercise, as applicable, of the outstanding Securities (which shall include the Put Preferred Stock to be issued) shall not exceed 10% of the outstanding Common Stock of the Company as of the Initial Closing Date. xviii. The transactions contemplated hereby shall not violate any law, regulation or order then in effect and applicable to Buyers or the Company.