Common use of The Initial Closing Clause in Contracts

The Initial Closing. The obligation of the Company to issue and sell the Initial Preferred Shares and the Warrants to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware; (iii) Such Buyer shall have delivered to the Company the Purchase Price (less in the case of Portside Growth & Opportunity Fund, the amounts withheld pursuant to Section 4(l)) for the Initial Preferred Shares and the Warrants being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (iv) The representations and warranties of such Buyer shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer at or prior to the Initial Closing Date. (v) Such Buyer shall have delivered to the Company such other documents relating to the transactions contemplated by this Agreement as the Company or its counsel may reasonably request. (vi) Each holder of any shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS").

The Initial Closing. The obligation of the Company each Buyer hereunder to issue and sell ------------------- purchase the Initial Preferred Shares and from the Warrants to each Buyer Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Companyeach Buyer's sole benefit and may be waived by the Company such Buyer at any time in its sole discretion by providing each Buyer the Company with prior written notice thereof: (i) Such Buyer The Company shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companysuch Buyer. (ii) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware;, and a copy thereof certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer. (iii) Such Buyer The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have delivered to been suspended by the Company SEC or the Purchase Price Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (less A) in writing by the case SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of Portside Growth & Opportunity Fund, the amounts withheld pursuant to Section 4(l)) for Principal Market; and the Initial Conversion Shares issuable upon conversion of the Preferred Shares and shall be listed upon the Warrants being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the CompanyPrincipal Market. (iv) The representations and warranties of such Buyer the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), ) and such Buyer the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above. (v) Such Buyer shall have received the opinion of Xxxx and Xxxx LLP, dated as of the Initial Closing Date, in the form of Exhibit D, attached --------- hereto. (vi) The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates (in such denominations as such Buyer shall request) for the Preferred Shares being purchased by such Buyer at the Initial Closing. (vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer (the "Resolutions"). (viii) As of the Initial Closing Date, the Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the Preferred Shares, at least 4,000,000 shares of Common Stock. (ix) hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Initial Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Initial Closing Date. (xii) The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Initial Closing. (xiii) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiv) 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 Initial Closing Date. (xv) The Company shall have received the approval of the requisite number of stockholders to amend the Company's Certificate of Incorporation to increase the authorized number of shares of Common Stock from 100,000,000 to 330,000,000 and shall have filed an amendment to its Certificate of Incorporation reflecting such increase. (xvi) The Company shall have delivered to the Company Buyers such other documents relating to the transactions contemplated by this Agreement the Transaction Documents as the Company Buyers or its their counsel may reasonably request. (vi) Each holder of any shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS").

The Initial Closing. The obligation of the Company each Buyer hereunder to issue and sell purchase the Initial Preferred Shares and the Warrants to each Buyer from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Companyeach Buyer's sole benefit and may be waived by the Company such Buyer at any time in its sole discretion by providing each Buyer the Company with prior written notice thereof: (i) Such Buyer The Company shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companysuch Buyer. (ii) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware;, and a copy thereof certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer. (iii) Such Buyer The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have delivered to been suspended by the Company SEC or the Purchase Price Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (less A) in writing by the case SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of Portside Growth & Opportunity Fund, the amounts withheld pursuant to Section 4(l)) for Principal Market; and the Conversion Shares issuable upon conversion of the Initial Preferred Shares (without regard to any limitations on conversions) and the Warrant Shares issuable upon exercise of the Warrants being purchased by such Buyer at (without regard to any limitations on exercises) shall be listed (subject to official notice of issuance) upon the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the CompanyPrincipal Market. (iv) The representations and warranties of such Buyer the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), ) and such Buyer the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above. (v) Such Buyer shall have received the opinion of Shack Xxxxxx Xxxx & Xxxxxxxx P.C., dated as of the Initial Closing Date, in the form of EXHIBIT F-1, attached hereto, and an opinion of the General Counsel to the Company as to contracts and agreements not attached to the SEC Documents, in the form of EXHIBIT F-2, attached hereto. (vi) The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates and Warrants (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Warrants being purchased by such Buyer at the Initial Closing. (vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS"). (viii) As of the Initial 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 Initial Preferred Shares, and the exercise of the Warrants, at least 12,839,294 shares of Common Stock. (ix) 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. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each U.S. Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Initial Closing Date. (xi) The Company shall have delivered a good standing certificate to such Buyer, certifying the Company's qualification to do business and the good standing of the Company in the State of Illinois as certified by the Secretary of State of the State of Illinois as of a date within ten days of the Initial Closing Date. (xii) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Initial Closing Date. (xiii) The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Initial Closing. (xiv) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (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 Initial Closing Date. (xvi) The Company shall have delivered to the Company Buyers such other documents relating to the transactions contemplated by this Agreement the Transaction Documents as the Company Buyers or its their counsel may reasonably request. (vixvii) Each holder of any The Company shall have redeemed all outstanding shares of Series B Preferred Stock and any holder for an amount per each share of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in equal to the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock Maturity Date Redemption Price (the "SERIES B CERTIFICATE OF DESIGNATIONS") and as such term is defined in the Series B Warrants that may be triggered in connection with the issuance Certificate of the Designations). (xviii) All holders of Series B Preferred Stock and Warrants, Series B Warrants shall have executed the Anti-Dilution Waivers. (xix) The Company (and its rights agent) shall have executed an amendment to its Amended and Restated Rights Agreement in the form of EXHIBIT E G attached hereto (the "ANTI-DILUTION WAIVERS")hereto.

The Initial Closing. The obligation of the Company to issue and sell the Initial Preferred Shares and the Warrants to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware; (iii) Such Buyer shall have delivered to the Company the Purchase Price (less in the case of Portside Growth & Opportunity Peconic Fund, Ltd., the amounts withheld pursuant to Section 4(l)) for the Initial Preferred Shares and the Warrants being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (iv) The representations and warranties of such Buyer shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer at or prior to the Initial Closing Date. (v) Such Buyer shall have delivered to the Company such other documents relating to the transactions contemplated by this Agreement as the Company or its counsel may reasonably request. (vi) Each holder of any shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS").

The Initial Closing. The obligation of the Company each Buyer hereunder to issue and sell purchase the Initial Preferred Shares and from the Warrants to each Buyer Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Companyeach Buyer's sole benefit and may be waived by the Company such Buyer at any time in its sole discretion by providing each Buyer the Company with prior written notice thereof: (i) Such Buyer The Company shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companysuch Buyer. (ii) The Certificate Statement of Designations shall have been filed with the Secretary Department of State of the Commonwealth of Pennsylvania, and a copy thereof certified by the Department of State of Delaware;the Commonwealth of Pennsylvania shall have been delivered to such Buyer. (iii) Such Buyer The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have delivered to been suspended by the Company SEC or the Purchase Price Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (less A) in writing by the case SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of Portside Growth & Opportunity Fund, the amounts withheld pursuant to Section 4(l)) for Principal Market; and the Conversion Shares issuable upon conversion of the Initial Preferred Shares and (without regard to any limitations on conversions) shall be listed (subject to official notice of issuance) upon the Warrants being purchased by such Buyer at the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the CompanyPrincipal Market. (iv) The representations and warranties of such Buyer the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), ) and such Buyer the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above. (v) Such Buyer shall have received the opinion of Hodgson Russ LLP, dated as of the Initial Closing Date, in txx xxxx xxxxched hereto as Exhibit D. (vi) The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates (in such denominations as such Buyer shall request) for the Initial Preferred Shares being purchased by such Buyer at the Initial Closing. (vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer (the "RESOLUTIONS"). (viii) As of the Initial 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 Initial Preferred Shares, at least 3,125,000 shares of Common Stock. (ix) The Irrevocable Transfer Agent Instructions, in the form of Exhibit C attached hereto, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (x) The Company shall have delivered to such Buyer a copy of a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state or commonwealth of incorporation or organization. (xi) The Company shall have delivered a copy of a good standing certificate to such Buyer, certifying the Company's qualification to do business and the good standing of the Company in the Commonwealth of Pennsylvania as certified by the Department of State of the Commonwealth of Pennsylvania. (xii) The Company shall have delivered to such Buyer a assistant secretary's certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Articles of Incorporation and (C) the By-laws, each as in effect at the Initial Closing. (xiii) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiv) 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 Initial Closing Date. (xv) The Senior Secured Notes shall have been issued and the Senior Credit Facility shall be effective. (xvi) The Company shall have delivered to the Company Buyers such other documents relating to the transactions contemplated by this Agreement the Transaction Documents as the Company Buyers or its their counsel may reasonably request. (vi) Each holder of any shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS").

The Initial Closing. The obligation of the Company each Buyer hereunder to issue and sell purchase the Initial Preferred Shares and the Warrants to each Buyer from the Company at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Companyeach Buyer's sole benefit and may be waived by the Company such Buyer at any time in its sole discretion by providing each Buyer the Company with prior written notice thereof: (i) Such Buyer The Company shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Companysuch Buyer. (ii) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware;, and a copy thereof certified by the Secretary of State of the State of Delaware shall have been delivered to such Buyer. (iii) Such Buyer The Common Stock (x) shall be designated for quotation or listed on the Principal Market and (y) shall not have delivered to been suspended by the Company SEC or the Purchase Price Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened either (less A) in writing by the case SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of Portside Growth & Opportunity Fund, the amounts withheld pursuant to Section 4(l)) for Principal Market; and the Conversion Shares issuable upon conversion of the Initial Preferred Shares (without regard to any limitations on conversions) and the Warrant Shares issuable upon exercise of the Warrants being purchased by such Buyer at (without regard to any limitations on exercises) shall be listed (subject to official notice of issuance) upon the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the CompanyPrincipal Market. (iv) The representations and warranties of such Buyer the Company shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), ) and such Buyer the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer the Company at or prior to the Initial Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Initial Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer, including, without limitation, an update as of the Initial Closing Date regarding the representation contained in Section 3(c) above. (v) Such Buyer shall have received the opinion of Shack Xxxxxx Xxxx Xxxxxxxx & Xxxxxxx P.C., dated as of the Initial Closing Date, in the form of Exhibit E-1, attached hereto, and an opinion of the General Counsel to the Company as to contracts and agreements not attached to the SEC Documents, in the form of Exhibit E-2, attached hereto. (vi) The Company shall have executed and delivered to such Buyer the Preferred Stock Certificates and Warrants (in such denominations as such Buyer shall request) for the Initial Preferred Shares and the Warrants being purchased by such Buyer at the Initial Closing. (vii) The Board of Directors of the Company shall have adopted resolutions consistent with Section 3(b) above and in a form reasonably acceptable to such Buyer (the "Resolutions"). (viii) As of the Initial 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 Initial Preferred Shares, and the exercise of the Warrants, at least 10,315,715 shares of Common Stock. (ix) 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. (x) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such entity's state of incorporation or organization issued by the Secretary of State of such state of incorporation or organization as of a date within ten days of the Initial Closing Date. (xi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware as of a date within ten days of the Initial Closing Date. (xii) The Company shall have delivered to such Buyer a secretary's certificate, dated as of the Initial Closing Date, certifying as to (A) the Resolutions, (B) the Certificate of Incorporation and (C) the By-laws, each as in effect at the Initial Closing. (xiii) The Company shall have made all filings under all applicable federal and state securities laws necessary to consummate the issuance of the Securities pursuant to this Agreement in compliance with such laws. (xiv) 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 Initial Closing Date. (xv) The Company shall have delivered to the Company Buyers such other documents relating to the transactions contemplated by this Agreement the Transaction Documents as the Company Buyers or its their counsel may reasonably request. (vi) Each holder of any shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS").

The Initial Closing. The obligation of the Company to issue and sell the Initial Preferred Shares and the Warrants to each Buyer at the Initial Closing is subject to the satisfaction, at or before the Initial Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) The Certificate Statement of Designations shall have been filed with the Secretary Department of State of the State Commonwealth of Delaware;Pennsylvania. (iii) Such Buyer All Buyers shall have delivered to the Company the Purchase Price (less in the case of Portside Growth & Opportunity Fund, Smithfield Fiduciary LLC the amounts withheld pursuant to Section 4(l4(k)) for the Initial Preferred Shares and the Warrants being purchased by such Buyer Buyers at the Initial Closing by wire transfer of immediately available funds pursuant to the wire instructions provided by the Company. (iv) The representations and warranties of such Buyer shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer at or prior to the Initial Closing Date. (v) Such Buyer shall have delivered to the Company such other documents relating to the transactions contemplated by this Agreement as the Company or its counsel may reasonably request. (vi) Each holder of any shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS").

The Initial Closing. The obligation initial closing of the purchase and sale of the Preferred Stock (the “Initial Closing”) shall take place remotely via the exchange of documents and signatures at 10:00 a.m. local time on the second Business Day following full satisfaction or due waiver of all of the closing conditions set forth in Section 3, or on such other date as may be mutually agreeable to the Company to issue and sell the Purchasers. At the Initial Closing, the Company shall cause its transfer agent to deliver to Purchaser stock certificates evidencing the number of shares of Preferred Shares and the Warrants Stock to each Buyer be purchased by such Purchaser at the Initial Closing is subject to (as set forth below such Purchaser’s name on the satisfaction, at or before signature page of this Agreement under the heading “Initial Closing DateShares”), of each registered in such Purchaser’s or its nominee’s name, upon payment of the following conditions, provided that these conditions are for purchase price in the Company's sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Such Buyer shall have executed each aggregate amount of the Transaction Documents to which it is a party and delivered the same to the Company. (ii) The Certificate of Designations shall have been filed with the Secretary of State of the State of Delaware; (iii) Such Buyer shall have delivered to the Company the Purchase Price (less in the case of Portside Growth & Opportunity Fund, the amounts withheld pursuant to Section 4(l)) for the Initial Preferred Shares and the Warrants being purchased by such Buyer at the “Initial Closing Purchase Price” set forth on such Purchaser’s signature page by wire transfer of immediately available funds pursuant to the wire instructions provided Company’s account specified in writing by the Company. (iv) The representations and warranties of Company which such Buyer account shall be true and correct as of the date when made and as of the Initial Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and such Buyer shall have performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by such Buyer at or specified not less than two Business Days prior to the Initial Closing Date. (v) Such Buyer shall have delivered Closing. The aggregate number of shares of Preferred Stock to be sold to the Company such other documents relating Purchasers at the Initial Closing shall be 2,565 shares for an aggregate purchase price of $769,500. Notwithstanding anything to the transactions contemplated contrary set forth herein, a Purchaser shall not be required to send its payment by this Agreement as the Company wire transfer until it (or its counsel may reasonably request. (videsignated custodian per its delivery instructions) Each holder confirms receipt of any its shares of Series B Preferred Stock and any holder of warrants (the "SERIES B WARRANTS") that were issued in connection with the issuance of the Series B Preferred Stock shall have signed a waiver of any anti-dilution protection set forth in the Certificate of Designations, Preferences and Rights of the Series B Convertible Preferred Stock (the "SERIES B CERTIFICATE OF DESIGNATIONS") and in the Series B Warrants that may be triggered in connection with the issuance of the Preferred Stock and Warrants, in the form of EXHIBIT E attached hereto (the "ANTI-DILUTION WAIVERS")Stock.