Common use of Third Closing Clause in Contracts

Third Closing. (i) Solely in the event that the Second Closing Trigger Event and the Initial Second Closing shall have previously occurred, the Company shall have the right, but not the obligation, to request that the Third Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c), the Company shall deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing Deadline. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).

Third Closing. (i) Solely in On the event that Third Closing Date, upon the Second Closing Trigger Event terms and the Initial Second Closing shall have previously occurredconditions set forth herein, the Company shall have the right, but not the obligation, agrees to request that the Third Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c), the Company shall deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c)sell, and (z) specify the closing date for such sale Purchaser agrees to purchase, 1,111,111 shares of Third Closing Notes hereunder Common Stock (the “Third Closing DateShares”) and the Third Closing Warrant, which closing shall occur no later than eighteen (18) months from the date of the Second Closing (the “Third Closing”). The Purchaser, which in its sole discretion, may purchase additional shares of Common Stock in the Third Closing Date (Athe “Additional Shares”) for the Per Share Purchase Price (the “Additional Subscription Amount”). On the Third Closing Date, the Purchaser shall not be earlier than deliver to the fifteenth Company, via wire transfer, immediately available funds equal to the Third Closing Subscription Amount (15th) Business Day following and the delivery Additional Subscription Amount, if applicable), and the Company shall deliver to the Purchaser the Third Closing Shares (and the Additional Shares, if applicable), and the Third Closing Warrant within three Trading Days of the Third Closing Election Notice to the CompanyDate, and (B) the Company and the Purchaser shall not be later than deliver the other items set forth in Section 2.2 deliverable at the Third Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Third Closing Deadline. (iii) In shall occur at the event that offices of Company Counsel or such other location as the Company parties shall timely deliver a Third mutually agree or remotely by exchange of Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”)documents. In the event that any Third that, from the Second Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to Date through the Third Closing DeadlineDate, which the Company issues more than 16,667 Pre-emptive Shares, the number of Third Closing Election Notice Shares shall specify that such Third Closing Investor is exercising its right under this Section 2.1(cbe increased (without the payment of additional funds by the Purchaser) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor number that shall so deliver a Third Closing Election Notice will result in the Purchaser owning the same percentage ownership of the outstanding shares of Common Stock that it would have been entitled to own had the Company not issued any Pre-emptive Shares in accordance connection with the foregoing is herein referred to as an “Exercising Third Closing Investor”)Closing.

Third Closing. (i) Solely in the event that the Second Closing Trigger Event and the Initial Second Closing shall have previously occurred, the Company shall have the right, but not the obligation, to request that the Third Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c), the Company shall deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing Deadline. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).exercising

Third Closing. Subject to the terms and conditions set forth in Section 4.3 and elsewhere in this Agreement, the Purchasers shall have the right (ithe "Purchasers' Call Option") Solely in at any time within a two (2) year period commencing on the event First Closing Date to deliver a written notice to the Company (a "Purchasers' Call Option Notice") requiring the Company to issue and sell on the same terms and conditions as at the First Closing, except that the Conversion Price shall be equal to the lesser of (x) $5.50 per share of Common Stock and (y) the five (5) day average closing bid price of the Common Stock (as reported by Bloomberg Information Services, Inc., or any successor reporting service) for the five (5) Trading Days (as defined below) immediately preceding the Second Closing Trigger Event Date, but in any event no lower than the Conversion Price at the First Closing, (1) an additional principal amount of Debentures of up to $3,000,000 and (2) an additional Warrant with an Exercise Price equal to 115% of the Initial Second Conversion Price at the Third Closing. The closing of the purchase and sale of the additional Debentures and Warrant(s) (the "Third Closing") under the Purchasers' Call Option Notice shall take place in the same manner as the First Closing, within five (5) business days of the date after delivery of the Purchasers' Call Option Notice (the "Third Closing Date"); provided, that in no case shall the Third Closing take place unless and until the conditions listed in Section 4.3 have been satisfied or waived by the appropriate party, and provided, further that, if the Company has filed a registration statement under the Securities Act relating to an Underwritten Offering (as defined in the Registration Rights Agreement) and if the Company, after consultation with the managing underwriter(s) or underwriter(s), should reasonably determine that the Third Closing would materially adversely affect the offering contemplated in such registration statement, then the Third Closing shall be delayed until sixty (60) days after the closing of such offering or until after the cancellation of such offering. If a Change of Control shall have previously occurredoccurred prior to the Second Closing, then the Company shall not be obligated to sell more than one-half ($1,500,000 aggregate principal amount of Debentures) of the amount of Debentures and Warrants described above; provided, that if the Change of Control occurs after the Second Closing, the Company shall have be required to sell the right, but not the obligation, to request that the Third Closing Investors agree to purchase full amount ($10,000,000 in 3,000,000 aggregate principal amount of Debentures) of Debentures and Warrants described above. At the Third Closing: (i) Each Purchaser shall deliver, as directed by the Company, its portion of the purchase price as set forth next to its name on a schedule similar to Schedule I (the "Third Closing Notes prior Schedule"), to be attached to the Third Closing Deadline Purchasers' Call Option Notice, in accordance with this Section 2.1(c).United States dollars in immediately available funds to an account or accounts designated in writing by the Company; (ii) In The Company shall deliver a Debenture, substantially in the form of Exhibit A hereto, except that Section 4.2(b) thereof shall be omitted, with a Conversion Price equal to the lesser of (A) $5.50 per share of Common Stock and (B) the five (5) day average closing bid price of the Common Stock (as reported by Bloomberg Information Services, Inc., or any successor reporting service) for the five (5) Trading Days immediately preceding the Second Closing Date (provided, that in no event that shall such Conversion Price be lower than the Company desires Conversion Price at the First Closing), representing the principal amount purchased by each Purchaser as set forth next to request that such Purchaser's name on the Third Closing Investors purchase Schedule, registered in the Third Closing Notes pursuant to this Section 2.1(c), the name of such Purchaser; (iii) The Company shall deliver each Third Closing Investor written notice a Warrant(s), substantially in the form of such request (a “Third Closing Request”) after Exhibit B hereto and with an Exercise Price equal to 115% of the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors Conversion Price at the Third Closing, shall be $10,000,000, (yrepresenting the Warrant(s) being purchased by each Purchaser as set forth the Company’s irrevocable offer next to sell such Purchaser's name on the Third Closing Notes specified Schedule, registered in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), name of such Purchaser; and (iv) The parties shall execute and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery deliver each of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing Deadline. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein documents referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”)4.3.

Third Closing. (i) Solely in the event that the Second Closing Trigger Event and the Initial Second Closing shall have previously occurred, the The Company shall have the right, but not the obligation, to request that the Third Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Subsequent Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c), the Company shall deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Subsequent Closing Deadline, which Third Closing Request shall (x) sets forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (zy) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Subsequent Closing Deadline. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which principal amount shall be allocated among the Third Closing Investors in proportion equal to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Subsequent Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c2.1(b) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).

Third Closing. At any time after forty-five (i45) Solely in the event that days following the Second Closing Trigger Event Date, subject to the mutual agreement of the Buyer and the Initial Second Closing shall have previously occurredCompany, the Company shall have the right, but not the obligation, to request that the Third Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c), the Company shall deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”)” and subject to satisfaction of the conditions set forth in Sections 7 and 8, which Third Closing Date (A) the Company shall not be earlier than deliver to the fifteenth Buyer the following: (15thi) Business Day following the delivery Third Debenture; (ii) an amendment to the Transfer Agent Instruction Letter instructing the Transfer Agent to reserve that number of shares of Common Stock as is required under Section 4(g) hereof, if necessary; and (iii) an officer’s certificate of the Company confirming, as of the Third Closing Election Notice to Date, the accuracy of the Company’s representations and warranties contained herein and updating Schedules 3(b), 3(c) and 3(k) as of the Third Closing Date, and (B) the Buyer shall not deliver to the Company the Third Purchase Price. 9. The following sentences shall be later than added to Section 12(a): In addition, the Company shall issue 350,000 shares of Restricted Stock (the “Second Commitment Shares”) to Investments as a commitment fee on the Second Closing Date. The Second Commitment Shares shall be earned in full as of the Second Closing Date. In addition, the Company shall issue 350,000 shares of Restricted Stock (the “Third Commitment Shares”) to Investments as a commitment fee on the Third Closing Deadline. (iii) In the event that the Company Date. The Third Commitment Shares shall timely deliver a Third Closing Request to the Third Closing Investors be earned in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, full as of the Third Closing Notes specified in the Third Closing Request Date. A non-accountable fee of One Thousand and 00/100 Dollars (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” $1,000.00) on the Schedule of Investors Second Closing Date (with respect to any particular the Second Debenture) shall be withheld from the Second Purchase Price to cover the Buyer’s accounting fees, legal fees, and other transactional costs incurred in connection with the transactions contemplated by the Second Debenture. A non-accountable fee of One Thousand and 00/100 Dollars ($1,000.00) on the Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder Date (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior with respect to the Third Closing DeadlineDebenture) shall be withheld from the Third Purchase Price to cover the Buyer’s accounting fees, legal fees, and other transactional costs incurred in connection with the transactions contemplated by the Third Debenture. 10. This Amendment shall be deemed part of, but shall take precedence over and supersede any provisions to the contrary contained in the Agreement. Except as specifically modified hereby, all of the provisions of the Agreement, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company are not in accordance conflict with the foregoing is herein referred to as an “Exercising Third Closing Investor”)terms of this Amendment, shall remain in full force and effect.

Third Closing. On the Third Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, such Purchaser’s Third Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser (ian aggregate of one million and no/100 dollars ($1,000,000.00)) Solely in principal amount of the event Debentures. At the Third Closing, each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Third Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Debenture and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Third Closing. Subject to the terms and conditions herein, upon the determination by the Company for a Third Closing at any time after the one year anniversary of the First Closing Date, provided that the Second Closing Trigger Event and the Initial Second Closing shall have previously occurred, and before the Company shall have 3 year anniversary of the right, but not the obligation, to request that the Third First Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c)Date, the Company shall deliver written notice to each Purchaser of the Third Closing Investor written notice of such request (a “Third Closing RequestNotice”) after ). Upon satisfaction of the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets covenants and conditions set forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at in Sections 2.2 and 2.3 for the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in shall occur at the Third Closing Request to offices of WS or such other location as the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify parties shall mutually agree within 15 Trading Days from the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice Notice. Notwithstanding the foregoing, at the sole option of the Purchasers, the Third Closing may occur at any time after the Second Closing Date and within 15 Trading Day notice by the Purchasers to the CompanyCompany of their intent to conduct the Third Closing, and irrespective of the Company meeting the requirements of the Third Closing Corporate Milestone, provided that in no event shall the Third Closing occur (Bi) shall not be later than the Third 3 year anniversary of the First Closing Deadline. Date, (ii) during a Change of Control Redemption Period (as defined in the Debentures) or (iii) In on or after the event that date, if any, on which all of the Company shall timely deliver a Third Closing Request to the Third Closing Investors then outstanding Debentures are prepaid in full in accordance with the foregoing, each Third Closing Investor shall have Debentures or otherwise with the right, but not the obligation, to purchase all, but not less than all, written consent of the Third Closing Notes specified Required Holders (as defined in the Third Closing Request (which amount shall be allocated among Debenture), in each case without the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount prior written consent of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).

Third Closing. (i) Solely in the event that At any time following the Second Closing Trigger Event and on or prior to December 31, 2010, and provided that the Initial Second Closing shall have previously occurredATA/RWI Investors (as defined herein) are not at such time in breach of Section 4.8 hereof, the Company shall issue and sell additional Notes and Warrants for up to an aggregate purchase price of $25,000 at a third closing (the “Third Closing” and each of the First Closing, the Second Closing and the Third Closing, a “Closing”) to ATA Ventures and/or RWI Ventures if so requested in writing by ATA Ventures or RWI Ventures, respectively. Each of ATA Ventures on the one hand and RWI Ventures on the other hand shall have the right, but not right to purchase up to its respective pro rata portion of the obligation, Notes and Warrants to request that be sold in the Third Closing Investors agree to purchase $10,000,000 based on their relative ownership in aggregate principal amount of Third Closing Notes the Company immediately prior to the Third Closing. The Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that shall occur on or before December 31, 2010, or at such time and place as the Company desires to request that and each of ATA Ventures and RWI Ventures shall determine (the "Third Closing Date" and each of the First Closing Date, the Second Closing Date, and the Third Closing Investors purchase Date, a “Closing Date”). Any such Third Closing shall be made on the terms and conditions set forth in this Agreement. At the Third Closing Notes pursuant to Closing, (A) this Section 2.1(c), Agreement and the other Transaction Documents shall have been executed and delivered by the Company shall deliver and each ATA/RWI Investor participating in such Third Closing Investor written notice Closing, (B) each of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior conditions to the Third Closing Deadline, which Third Closing Request described in this Agreement shall have been satisfied or waived as specified therein and (xC) sets forth that the aggregate principal amount full payment of each such Third Closing Notes that ATA/RWI Investor’s Purchase Price shall have been made by wire transfer of immediately available funds against physical delivery by the Company requests to sell to of duly executed certificates representing the Third Closing Investors at Note and Warrant being purchased by such ATA/RWI Investor. Upon the consummation of the Third Closing, Annex I shall be $10,000,000, (y) set forth amended by the Company’s irrevocable offer Company to sell reflect the Third Closing sale of the Notes specified and Warrants in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing DeadlineClosing. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).

Third Closing. (i) Solely in On the event that Third Closing Date, upon the Second Closing Trigger Event terms and subject to the Initial Second Closing shall have previously occurredconditions set forth herein, the Company shall have agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, up to an aggregate of $364,000 in Principal Amount of the right, but not the obligation, Debentures (corresponding to request that an aggregate Third Closing Subscription Amount of up to $325,000). At the Third Closing Investors agree Closing, each Purchaser shall deliver to purchase $10,000,000 in aggregate principal amount of the Control Account Agent, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Third Closing Notes prior Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Debenture and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Third Closing. Subject to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c)terms and conditions herein, on or about September 30, 2014, the Company shall deliver written notice to each Purchaser of the Third Closing Investor written notice of such request (a “Third Closing RequestNotice”) after ). Upon satisfaction of the Initial Second Closing but on or prior to the date that is fifteen (15) Business Days prior to the Third Closing Deadline, which Third Closing Request shall (x) sets covenants and conditions set forth that the aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at in Sections 2.2 and 2.3 for the Third Closing, shall be $10,000,000, (y) set forth the Company’s irrevocable offer to sell the Third Closing Notes specified in shall occur at the Third Closing Request to offices of EGS or such other location as the Third Closing Investors in accordance with this Section 2.1(c), and parties shall mutually agree within three (z3) specify Trading Days from the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to Notice. Notwithstanding the Companyforegoing, and (B) shall not be later than at the sole option of the Purchasers, the Third Closing Deadline. may occur at any time after the Second Closing Date and within 15 Trading Day notice by the Purchasers to the Company of their intent to conduct the Third Closing, irrespective of the Company meeting the requirements of the Third Closing Corporate Milestone, provided that in no event shall the Third Closing occur (i) later than October 30, 2014 or (iii) In on or after the event that date, if any, on which all of the Company shall timely deliver a Third Closing Request to the Third Closing Investors then outstanding Debentures are prepaid in full in accordance with the foregoing, each Third Closing Investor shall have Debentures or otherwise with the right, but not the obligation, to purchase all, but not less than all, written consent of the Third Closing Notes specified Required Holders (as defined in the Third Closing Request (which amount shall be allocated among Debenture), in each case without the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount prior written consent of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).

Third Closing. (ia) Solely Prior to the commencement of the Phase 0 study (as defined in the event that the Second Closing Trigger Event and the Initial Second Closing shall have previously occurred, the Company shall have the right, but not the obligation, to request that the Third Closing Investors agree to purchase $10,000,000 in aggregate principal amount of Third Closing Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (ii) In the event that the Company desires to request that the Third Closing Investors purchase the Third Closing Notes pursuant to this Section 2.1(cUpdated R&D Budget), the Company shall require the prior written approval of Purchaser to the location and protocol of such Phase 0 Study, which approval shall be in Purchaser’s sole discretion. Upon completion of such Phase 0 study, the Company shall deliver each Third Closing Investor written notice to the Purchaser (“Company Notice”), along with a report summarizing the results of such request the Phase 0 study pursuant to the terms of the RELO Agreement. (b) Within forty-five (45) days of receiving the Company Notice, the Purchaser may deliver to the Company, at its sole discretion, a written notice (the “Third Closing RequestNotice”) after that that Purchaser elects to proceed with the Initial Second Closing but on or prior to R&D Program and pursue the date that is fifteen filing of an IND (15) Business Days prior to as defined in the RELO Agreement). If the Purchaser does not deliver the Third Closing DeadlineNotice, which Third Closing Request then the parties hereto shall have no further rights or obligations under this Section 2.4 hereof. (xc) sets forth that If the aggregate principal amount of such Third Closing Notes that the Company requests to sell to Purchaser delivers the Third Closing Investors at Notice, then the Company and the Purchaser will proceed to the Third Closing, shall be $10,000,000, (y) set forth which will occur within 15 days following the Company’s irrevocable offer to sell receipt of the Third Closing Notes specified in Notice at the offices of Xxxxxx & Xxxxxx L.L.P., 000 Xxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx, 00000-0000, or at such other place as may be mutually agreed upon between the parties hereto, on such date and time as shall be mutually agreed upon between the parties hereto (the “Third Closing” and the date of the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c)Closing, and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”). (d) It shall be a condition to the obligation of the Company and the Purchaser to consummate the Third Closing that the NYSE Amex shall have approved the Third Closing Shares for listing on the NYSE Amex. (e) At the Third Closing the following transactions shall take place, all of which shall be deemed to have occurred simultaneously: (i) The Company shall sell and issue to the Purchaser, and the Purchaser shall purchase from the Company, the number of shares of Common Stock equal to the quotient of (i) $750,000 divided by (ii) the per share price that is equal to 120% of the closing price of the Common Stock on the primary Trading Market on which the Common Stock is then trading as reported by Bloomberg L.P. for the last trading day preceding the Third Closing Date (Athe “Third Closing Shares”). (ii) The Purchaser shall not be earlier than transfer to the fifteenth (15th) Business Day following Company the delivery amount of $750,000 by wire transfer of immediately available funds to the account of the Company (“Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing DeadlinePayment”). (iii) In the event that If Third Closing Shares are being issued, the Company shall timely deliver to the Purchaser a Third Closing Request to stock certificate, free and clear of all restrictive legends (except as expressly provided in Section 5.1(a)), evidencing the Third Closing Investors Shares, registered in accordance the name of the Purchaser. (iv) The Purchaser shall provide the Company with a compliance certificate, in form and substance reasonably satisfactory to the foregoingCompany, each Third Closing Investor shall have certifying the right, but not accuracy of the obligation, to purchase all, but not less than all, Purchaser’s representations and warranties in the Agreement as of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing NotesDate.”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company of its election to purchase such Third Closing Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (any Third Closing Investor that shall so deliver a Third Closing Election Notice to the Company in accordance with the foregoing is herein referred to as an “Exercising Third Closing Investor”).