Common use of Conditions to The Buyer’s Obligation to Purchase Clause in Contracts

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s obligation to purchase the Note Preferred Share and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such datedate and, except for the approvals and filings referred to in clause (2) of Section 4(f), which shall have been obtained or made, as required, on or before the Closing Date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note Preferred Share were outstanding, (1) would constitute an Optional Redemption Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Optional Redemption Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ , LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form attached as Annex III; and (oe) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York or the State of Washington shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s obligation to purchase the Note and acquire the December Closing Date Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a an appropriate certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerthereby; (f) The Collateral Agent closings under the Other Note Purchase Agreements shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyeroccurred; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (nh) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form substantially similar to the attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form substantially similar to the attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the BuyerVIII; and (oi) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (pj) ▇▇▇▇ ▇▇▇▇▇▇▇ All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have executed and delivered to the Buyers been made, and the Company a Lockup Agreement in Buyer shall have received satisfactory evidence of such filings; and (k) None of the form attached as Annex IX.Other Notes shall have been redeemed by the Company;

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Preferred Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks Delivery by the Company to restrain or prohibit the transactions contemplated by Escrow Agent of the certificates for the Preferred Shares and the Warrants in accordance with this Agreement; (b) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or Chief Financial Officer, to of the effect set forth in subparagraphs (a), (b) Company confirming such matters and such other matters as the Buyer may reasonably request; (c) The receipt by the Buyer of this Section 7confirmation of the filing with the Secretary of State of the State of Delaware of the Certificate of Designations; (ed) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation Incorporation, as amended, and By-Laws of the Company as in effect on the Closing Date, Date and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerhereby; (fe) The Collateral Transfer Agent shall have executed and delivered to the Company Transfer Agent Agreement in the Pledge and Security Agreement and a copy thereof duly executed and delivered form attached hereto as ANNEX V; and (f) Receipt by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date of an opinion of Sichenzia ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ LLP, LLC, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement effect set forth in the form ANNEX VII attached as Annex IXhereto.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Preferred Stock on or before the Closing Date (any or all of which may be waived is conditioned upon: a. Acceptance by the Buyer in its sole discretion): (a) No legal actionCompany of this Agreement for the sale of Preferred Stock, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated as indicated by execution of this Agreement; (b) b. Delivery by the Company to the Escrow Agent of the appropriate Preferred Stock in accordance with this Agreement; c. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated before the Closing DateDate and as to Preferred Stock, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect conditions set forth in subparagraphs (a), (b) and (c) of this Section 7;Paragraph 4g; and (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) d. On the Closing Date, the Buyer shall have having received (i) an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in Annex III attached hereto, (ii) the Registration Rights Agreement annexed hereto as Annex IV and the Warrants. (o) On e. No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement or the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement or the Transaction Documents. f. From and after the date hereof to and including the Closing Date, (i) the trading of the Common Stock shall not have been suspended by the SEC, or the NASD and trading in securities generally on the New York Stock Exchange, Inc.NASDAQ/Small Cap, the AMEXor Bulletin Board, Nasdaq or the Nasdaq Capital Market as applicable, shall not have been suspended or materially limited and (ii) a general moratorium limited, nor shall minimum prices been established for securities traded on commercial banking activities NASDAQ/Small Cap or Bulletin Board, as applicable, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the State reasonable judgment of New York shall not have been declared by either federal the Buyer makes it impracticable or state authoritiesinadvisable to purchase the Preferred Stock. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Preferred Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks Delivery by the Company to restrain or prohibit the transactions contemplated by Escrow Agent of the certificates for the Preferred Shares and the Warrants in accordance with this Agreement; (b) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or Chief Financial Officer, to of the effect set forth in subparagraphs (a), (b) Company confirming such matters and such other matters as the Buyer may reasonably request; (c) The receipt by the Buyer of this Section 7confirmation of the filing with the Secretary of State of the State of Nevada of the Certificate of Designations; (ed) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate Articles of Incorporation Incorporation, as amended, and By-Laws of the Company as in effect on the Closing Date, Date and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerhereby; (fe) The Collateral Transfer Agent shall have executed and delivered to the Company Transfer Agent Agreement in the Pledge and Security Agreement and a copy thereof duly executed and delivered form attached hereto as ANNEX V; and (f) Receipt by the Company, shall have been furnished to Buyer on the Buyer; (g) The Buyer shall have received from the Company customary, current search reports Closing Date of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia Snell & Wilmer L.L.P., counse▇ ▇▇▇▇ th▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Companyany, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On , to the Closing Date, (i) trading effect set forth in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited ANNEX VII attached hereto and (ii) a general moratorium on commercial banking activities in the State an opinion of New York shall not have been declared by either federal or state authorities. (p) James, Driggs, Walch, Santoro, ▇▇▇rney, Johnson & Thompson, Nevada co▇▇▇▇▇ ▇o t▇▇ ▇▇▇▇▇▇▇ shall have executed ny, dated the Closing Date, in form, scope and delivered substance reasonably satisfactory to the Buyers and Buyer, to the Company a Lockup Agreement effect set forth in the form ANNEX VIII attached as Annex IXhereto.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date date of issuance (any or all of which may be waived by the Buyer in its sole discretion): (a) No On the date of issuance, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date date of issuance as if given on and as of the Closing Date date of issuance (except for representations given as of a specific date, which representations shall be true and correct as of such datedate and, except for the approvals and filings referred to in clause (2) of Section 4(g), which shall have been obtained or made, on or before the date of issuance), and on or before the Closing Date date of issuance the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Datedate of issuance; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Datedate of issuance, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) ), and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation Incorporation, including the Certificate of Designation, and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the BuyerBuyers, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement substantially in the form attached as Annex IX.II; (g) The Company shall have delivered to the Buyer the Security Agreement, substantially in the form attached as Annex III; (h) The Company shall have delivered to the Buyer the waiver and consent to the transactions contemplated hereby of the Senior Lender;

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Debentures on or before the Closing Date (any or all of which may be waived is conditioned upon: a. Acceptance by the Buyer in its sole discretion): (a) No legal actionCompany of this Agreement for the sale of Debentures, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated as indicated by execution of this Agreement; (b) b. Delivery by the Company to the Escrow Agent of the Debentures, in accordance with this Agreement; c. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated before the Closing DateDate and as to Debentures, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect conditions set forth in subparagraphs (a), (b) and (c) of this Section 7;Paragraph 4g; and (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) d. On the Closing Date, the Buyer shall have having received (i) an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX III attached hereto, (ii) the Registration Rights Agreement, (iii) the Warrants, (iv) the Pledge Agreement and (v) the Letter of Credit. (o) On e. No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement or the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement or the Transaction Documents. f. From and after the date hereof to and including the Closing Date, (i) the trading of the Common Stock shall not have been suspended by the SEC, or the NASD and trading in securities generally on the New York Stock Exchange, Inc.NASDAQ/Small Cap, the AMEXor Bulletin Board, Nasdaq or the Nasdaq Capital Market as applicable, shall not have been suspended or materially limited and (ii) a general moratorium limited, nor shall minimum prices been established for securities traded on commercial banking activities NASDAQ/Small Cap or Bulletin Board, as applicable, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the State reasonable judgment of New York shall not have been declared by either federal the Buyer makes it impracticable or state authoritiesinadvisable to purchase the Debentures. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Debentures on or before the Closing Date (any or all is conditioned upon: A. Acceptance by Buyer of which may be waived an Agreement for the sale of Debenture, as indicated by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by execution of this Agreement; (b) B. Delivery by the Company to the Escrow Agent of the Debenture in accordance with this Agreement; C. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated before the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7;; and (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) D. On the Closing Date, the Buyer shall have having received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to thece with the Buyer and an opinion laws of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated State of New York. Each of the Closing Date, addressed parties consents to the Buyer, in jurisdiction of the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to federal courts whose districts encompass any part of the Buyer; and (o) On the Closing Date, (i) trading in securities on the City of New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in state courts of the State of New York sitting in the City of New York in connection with any dispute arising under this Agreement and hereby waives, to the maximum extent permitted by law, any objection, including any objection based on forum non conveniens, to the bringing of any such proceeding in such jurisdictions. A facsimile transmission of this signed Agreement shall be legal and binding on all parties hereto. This Agreement may be signed in one or more counterparts, each of which shall be deemed an original. The headings of this Agreement are for convenience of reference and shall not have been declared form part of, or affect the interpretation of, this Agreement. If any provision of this Agreement shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Agreement or the validity or enforceability of this Agreement in any other jurisdiction. This Agreement may be amended only by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed an instrument in writing signed by the party to be charged with enforcement. This Agreement supersedes all prior agreements and delivered understandings among the parties hereto with respect to the Buyers subject matter hereof. Any costs (including attorneys fees and the Company a Lockup Agreement in the form attached as Annex IX.disbursements) incurred by Buyer

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Notes is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No On or before the Closing Date, the Trustee shall have executed and delivered to the Company the Indenture in the form filed as Exhibit 4.2 to the Registration Statement and the Supplemental Indenture in the form attached hereto as ANNEX IV; (b) On or before the Closing Date, the Transfer Agent and the Trustee shall have executed and delivered to the Company the Conversion Agent Agreement in the form attached hereto as ANNEX II; (c) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bd) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and and, except for the approvals referred to in clauses (1) through (4) of Section 4(i), which shall have been obtained on or before the Closing Date, shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations any representation given as of a specific date, which representations representation shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (ce) The Registration Statement shall remain effective; no stop-order or similar proceeding relating to the Registration Statement shall be pending or threatened; the Company shall have filed the Prospectus Supplement with the SEC; and, on or after the date of execution and delivery of this Agreement but on or before the Closing Date, the Company shall not have made or filed with the SEC any amendment or supplement to the Registration Statement or the Prospectus other than the Prospectus Supplement; (f) No event which, if the Note Notes were outstanding, (1) would constitute an Event of Default or whichor, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or whichor, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (dg) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its President and Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ac), (bd), (e) and (cf) of this Section 7; (eh) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered receipt by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received an opinion Date of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.,

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Preferred Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding The Company and the Escrow Agent shall be pending or threatened which seeks have executed and delivered the Escrow Agreement in the form attached hereto as ANNEX III. (b) Delivery by the Company to restrain or prohibit the transactions contemplated by Escrow Agent of the certificates for the Preferred Shares and the Warrants in accordance with this Agreement and the Escrow Agreement; (bc) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with before the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred Closing Date and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or Chief Financial Officer, to of the effect set forth in subparagraphs Company confirming such matters and such other matters as the Buyer may reasonably request; (a), (bd) and (c) The receipt by the Buyer of this Section 7confirmation of the filing with the Secretary of State of the State of Colorado of the Articles of Amendment; (e) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate Articles of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Transfer Agent shall have executed and delivered to the Company Transfer Agent Agreement in the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer;form attached hereto as ANNEX V; and (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and Receipt by the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date of an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇& ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement effect set forth in the form ANNEX VIII attached as Annex IXhereto.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Preferred Stock on or before the Closing Date (any or all of which may be waived is conditioned upon: a. Acceptance by the Buyer in its sole discretion): (a) No legal actionCompany of this Agreement for the sale of Preferred Stock, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated as indicated by execution of this Agreement; (b) b. Delivery by the Company to the Escrow Agent of the appropriate Preferred Stock in accordance with this Agreement; c. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated before the Closing DateDate and as to Preferred Stock, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect conditions set forth in subparagraphs (a), (b) and (c) of this Section 7;Paragraph 4g; and (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) d. On the Closing Date, the Buyer shall have having received (i) an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX III attached hereto, (ii) the Registration Rights Agreement annexed hereto as ANNEX IV and the Warrants. (o) On e. No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement or the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement or the Transaction Documents. f. From and after the date hereof to and including the Closing Date, (i) the trading of the Common Stock shall not have been suspended by the SEC, or the NASD and trading in securities generally on the New York Stock Exchange, Inc.NASDAQ/Small Cap, the AMEXor Bulletin Board, Nasdaq or the Nasdaq Capital Market as applicable, shall not have been suspended or materially limited and (ii) a general moratorium limited, nor shall minimum prices been established for securities traded on commercial banking activities NASDAQ/Small Cap or Bulletin Board, as applicable, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the State reasonable judgment of New York shall not have been declared by either federal the Buyer makes it impracticable or state authoritiesinadvisable to purchase the Preferred Stock. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such datedate and, except for the approvals and filings referred to in clause (2) of Section 4(g), which shall have been obtained or made, on or before the Closing Date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) ), and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ , LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form attached as ANNEX III-1; and (g) On the Closing Date, the Buyer and shall have received an opinion of ▇▇▇▇, ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇▇▇, LLPL.L.P., intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form attached as ANNEX III-2; and (oh) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York or the State of Texas shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Preferred Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company to the Escrow Agent of the certificates for the Preferred Shares and the Warrants in accordance with this Agreement; (b) The Transfer Agent shall have acknowledged in writing the Transfer Agent Instruction on terms acceptable to the Buyer; (c) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bd) The representations and warranties of the Company contained in this Agreement shall have been true and correct on each other agreement or instrument executed and delivered by the date of Company in connection with this Agreement and shall be true and correct on the Closing Date as if given made on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), Date; and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (ce) No event which, if the Note Preferred Shares were outstanding, (1) would constitute an Optional Redemption Event of Default or whichor, with the giving of notice or the passage lapse of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Optional Redemption Event shall have occurred and be continuing; (df) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its Chief Executive Financial Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ac), (b) d), and (ce) of this Section 7; (eg) The Buyer shall have received satisfactory confirmation of the filing with the Secretary of State of the State of Delaware of the Certificate of Designations; (h) The Company shall have delivered filed the appropriate application or form with Nasdaq for the listing of the Common Shares on Nasdaq (which need not be accompanied by the applicable fees of Nasdaq) and the Buyer shall have received written evidence of such filing; (i) The Company shall have received (and furnished a copy to the Buyer) written confirmation, on terms acceptable to the Buyer, from the Nasdaq that, for purposes of Section 4460(i) of the rules of the NASD, the issuance of the Preferred Shares and the Warrants, and the issuance of Common Shares upon conversion of Preferred Shares and in payment of dividends thereon and on exercise of the Warrants will not be integrated with the issuance on June 4, 1997 of the Company's Senior Convertible Notes and Common Stock Purchase Warrants, or the issuance of shares of Common Stock upon conversion and exercise thereof; (j) The Buyer shall have received a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (gk) The Buyer shall have received from on the Company customaryClosing Date (1) an opinion of Holme ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, current search reports of dated the relevant Uniform Commercial Code filing officesClosing Date, addressed to the content of which reports shall be Buyer, in form, scope and substance reasonably satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent effect set forth in ANNEX V attached hereto and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j2) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for Esq., Director, Legal Affairs of the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX VI attached hereto; (ol) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of Colorado or the State of New York shall not have been declared by either federal or state authorities.; and (pm) ▇▇▇▇ ▇▇▇▇▇▇▇ The Company shall have executed obtained (1) written waivers, in form and delivered substance reasonably satisfactory to the Buyers and Buyer, (A) by D&N Holding Company ("D&N") of the rights under the Subscription Agreement, dated as of June 7, 1993, between the Company and D&N, with respect to the purchase of certain securities by D&N, and shall have furnished a Lockup Agreement copy of such waiver to the Buyer and (B) by all Persons listed on the Disclosure Statement by reason of the last sentence of Section 4(c) and (2) written consents, in form and substance reasonably satisfactory to the form attached as Annex IXBuyer, of the holders of the Company's Senior Convertible Notes issued on June 4, 1997.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note at the Closing and acquire to take the Warrant other actions to be taken by the Buyer at the Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):discretion by providing the Issuer with prior written notice thereof: (ai) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties Each of the Company contained in this Agreement and the Issuer shall have been true duly executed and correct on delivered to the date Buyer each of this Agreement the Transaction Documents to which it is a party. (ii) The Buyer shall have received the opinion of M▇▇▇▇▇ and shall be true and correct on C▇▇▇▇▇, the Closing Date as if given on and Issuer's outside British Virgin Islands counsel, dated as of the Closing Date Date, in substantially the form of Exhibit E attached hereto. (except for representations given iii) The Buyer shall have received the opinion of O'Melveny & M▇▇▇▇ LLP, the Issuer's outside U.S. counsel, dated as of the Closing Date, in substantially the form of Exhibit F attached hereto. (iv) The Issuer shall have delivered to the Buyer a certificate evidencing the good standing of the Issuer in the British Virgin Islands as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required date within twenty (20) days prior to be performed by the Company on or before the Closing Date;. (cv) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default The Issuer shall have occurred and be continuing or delivered to the Buyer a certified copy of the Issuer Articles, as certified by the Registrar of Companies of the British Virgin Islands within twenty (220) would constitute a Repurchase Event or which, with days prior to the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing;Closing Date. (dvi) The Company Issuer shall have delivered to the Buyer a certificate, executed by the director of the Issuer and dated as of the Closing Date, duly executed certifying the resolutions adopted by its Chief Executive Officer or Chief Financial Officerthe Issuer's Board of Directors approving the transactions contemplated by the Transaction Documents, certifying the current versions of the Issuer Articles and certifying as to the effect set forth signatures and authority of Persons signing the Transaction Documents and related documents on behalf of the Issuer in subparagraphs (a), (b) and (c) of this Section 7;the form attached hereto as Exhibit G. (evii) The Company Issuer shall have delivered to the Buyer a certificate, dated the Closing Date, of executed by the Secretary of the Company and dated as of the Closing Date, certifying (1) the resolutions adopted by the Company's Board of Directors approving the Registration Rights Agreement and the transactions contemplated thereby, certifying the current versions of the Company Certificate of Incorporation and By-Laws Company Bylaws and certifying as to the signatures and authority of Persons signing the Transaction Documents and related documents on behalf of the Company in the form attached hereto as Exhibit H. (viii) Each representation and warranty of the Issuer, together or individually, shall be true and correct in effect on all material respects (except for those representations and warranties that are qualified by materiality or a Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Issuer shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by it or them at or prior to the Closing Date. The Buyer shall have received a certificate from the Issuer, executed by the director of the Issuer and dated as of the Closing Date, (2) all resolutions of to the Board of Directors (foregoing effect and committees thereof) of the Company relating as to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as may be reasonably requested by the Buyer;Buyer in the form attached hereto as Exhibit G. (fix) The Collateral Agent Issuer shall have executed obtained any and delivered all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the sale and issuance of the Note and the consummation of the other transactions contemplated by the Transaction Documents to be consummated on or prior to the Company Closing Date, all of which shall be in full force and effect. (x) The shares of Common Stock shall not have been suspended, as of the Pledge and Security Agreement and a copy thereof duly executed and delivered Closing Date, by the CompanySEC or Nasdaq from trading on Nasdaq nor shall suspension by the SEC or Nasdaq have been threatened, as of the Closing Date, either (A) in writing by the SEC or Nasdaq or (B) by falling below the minimum listing maintenance requirements of Nasdaq. (xi) No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been furnished to issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the Buyer;consummation of the transactions contemplated by the Transaction Documents. (gxii) The Buyer shall have received from perfected its security interest in and to the Pledged Collateral (as defined in the Pledge Agreement) to the reasonable satisfaction of the Buyer. (xiii) The Issuer shall have delivered to the Collateral Agent (as defined in the Pledge Agreement) the certificates representing the Pledged Stock (as defined in the Pledge Agreement) and the Powers (as defined in the Pledge Agreement). (xiv) The Company’s delivery to the Buyer of a written consent and waiver of ABN AMRO Bank N.V., Hong Kong Branch ("ABN") of all matters set forth in the Registration Rights Agreement pursuant to the Registration Rights Agreement, dated April 19, 2007, by and between the Company customary, current search reports and ABN. (xv) All financing statements filed in favor of ABN covering shares of Common Stock held by the relevant Uniform Commercial Code filing offices, the content of which reports Issuer shall be satisfactory have terminated in their entirety. (xvi) The Company’s delivery to the Buyer;Buyer of an executed authorization letter of ABN in the form attached hereto as Exhibit I. (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (ixvii) The Collateral Agent Issuer shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the CompanyCross Receipt, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports dated as of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, in the Buyer shall have received an opinion form of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLPExhibit D attached hereto, counsel for and delivered the Company, dated the Closing Date, addressed same to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. (a) The Company understands that obligation of the Buyer’s obligation Buyer(s) hereunder to purchase the Note and acquire Notes at the Warrant Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which may be waived by each of the Buyer in its sole discretion):following conditions: (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bi) The representations and warranties of the Company contained in this Agreement shall have been be true and correct on in all material respects (except to the date extent that any of this Agreement such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct on without further qualification) as of the Closing Date as if given on date when made and as of the Closing Date as though made at that time (except for representations given and warranties that speak as of a specific date, which representations shall be true ) and correct as of such date), and on or before the Closing Date the Company shall have performed performed, satisfied and complied in all covenants material respects with the covenants, agreements and agreements of the Company contained herein or in any of the other Transaction Documents conditions required by this Agreement to be performed performed, satisfied or complied with by the Company on at or before prior to the Closing Date;. (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (dii) The Company shall have delivered to obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for consummation of the Buyer purchase and sale of the Notes, all of which shall be in full force and effect. (iii) The Buyers shall have received a certificate, executed by the President or Chief Executive Officer of the Company, dated as of the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the foregoing effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered as to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as may be reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the CompanyBuyers, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customaryincluding, current search reports without limitation, an update as of the relevant Uniform Commercial Code filing offices, Closing Date regarding the content of which reports shall be satisfactory to the Buyer; (hrepresentation contained in Section 3(c) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authoritiesabove. (piv) ▇▇▇▇ ▇▇▇▇▇▇▇ The Company shall have executed and delivered to the Buyers the Notes in the respective amounts set forth on the Buyer Omnibus Signature Pages affixed hereto. (v) The Company and each subsidiary of the Company shall have delivered to the Buyers a Lockup certificate, executed on its behalf by an appropriate officer, dated as of the Closing Date, certifying the resolutions adopted by its Board of Directors approving the transactions contemplated by this Agreement and (in the form attached case of the Company) the issuance of the Notes, certifying the current versions of its Certificate of Formation and Operating Agreement (or equivalent documents) and certifying as Annex IXto the signatures and authority of persons signing this Agreement on behalf of the Company. The foregoing certificate shall only be required to be delivered on the first Closing Date, unless any information contained in the certificate has changed. (vi) The Company shall have performed and complied in all material respects with all agreements, covenants and conditions to closing required to be performed and complied by it or them under the Security Agreement, unless such agreements, covenants and conditions have been waived by the Buyers.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Preferred Stock on or before the Closing Date (any or all of which may be waived is conditioned upon: a. Acceptance by the Buyer in its sole discretion): (a) No legal actionCompany of this Agreement for the sale of Preferred Stock, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated as indicated by execution of this Agreement; (b) b. Delivery by the Company to the Escrow Agent of the appropriate Preferred Stock in accordance with this Agreement; c. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated before the Closing DateDate and as to Preferred Stock, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect conditions set forth in subparagraphs (a), (b) and (c) of this Section 7;Paragraph 4g; and (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) d. On the Closing Date, the Buyer shall have having received (i) an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX III attached hereto, (ii) the Registration Rights Agreement annexed hereto as ANNEX IV and the Warrants. (o) On e. No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement or the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement or the Transaction Documents. f. From and after the date hereof to and including the Closing Date, (i) the trading of the Common Stock shall not have been suspended by the SEC, or the NASD and trading in securities generally on the New York Stock Exchange, Inc.NASDAQ/Small Cap, the AMEXBulletin Board, Nasdaq or the Nasdaq Capital Market over-the-counter market, as applicable, shall not have been suspended or materially limited and (ii) a general moratorium limited, nor shall minimum prices been established for securities traded on commercial banking activities NASDAQ/Small Cap, Bulletin Board, or over-the-counter market, as applicable, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the State reasonable judgment of New York shall not have been declared by either federal the Buyer makes it impracticable or state authoritiesinadvisable to purchase the Preferred Stock. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. (a) The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Initial Note and acquire the Incremental Warrant at the Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):discretion by providing the Company with prior written notice thereof: (ai) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement and each of its Subsidiaries shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Buyer each of the Transaction Documents to which it is a party and the Company the Pledge and Security Agreement and a copy thereof shall have duly executed and delivered by the Company, shall have been furnished to the BuyerBuyer (x) the Initial Note in the original principal amount of $3,000,000 and (y) the Incremental Warrant exercisable for Notes in the aggregate original principal amount of up to $6,500,000; (gii) The Buyer there shall have received from the Company customary, current search reports be no existing event of default under any of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the BuyerCompany’s senior secured indebtedness; (hiii) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence the opinion of such filingsAkerman LLP, the Company’s corporate counsel, dated as of the Closing Date, in the form acceptable to the Buyer and its counsel; (iiv) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence the opinion of such filings▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇, P.A., the Company’s Delaware counsel, dated as of the Closing Date, in the form acceptable to the Buyer and its counsel; (lv) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel the Company’s Arizona counsel, dated as of the Closing Date, in the form acceptable to the Buyer and its counsel; (vi) the Company shall have delivered to the Buyer a copy of the Irrevocable Transfer Agent Instructions, in the form acceptable to the Buyer, which instructions shall have been delivered to and acknowledged in writing by the Transfer Agent and shall remain in full force and effect as of the Closing Date; (vii) the Company shall have delivered to the Buyer a certificate evidencing the formation and good standing (if a good standing concept exists in such jurisdiction) of the Company and each of its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Closing Date; (viii) the Company shall have delivered to the Buyer a certificate evidencing the Company’s and each Subsidiary’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company and each Subsidiary conducts business and is required to so qualify, as of a date within ten (10) days of the Closing Date; (ix) the Company shall have delivered to the Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within ten (10) days of the Closing Date; (x) each Subsidiary shall have delivered to the Buyer a certified copy of its Certificate of Incorporation (or such equivalent organizational document) as certified by the Secretary of State (or comparable office) of such Subsidiary’s jurisdiction of incorporation or formation within ten (10) days of the Closing Date; (xi) the Company shall have delivered to the Buyer a certificate, in the form acceptable to the Buyer, executed by the Secretary of the Company and dated as of the Closing Date, as to (i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to the Buyer, (ii) the Certificate of Incorporation of the Company and the organizational documents of each Subsidiary and (iii) the Bylaws of the Company and the bylaws of each Subsidiary, each as in effect at the Closing; (xii) each and every representation and warranty of the Company shall be true and correct in all material respects (except for such representations and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all material respects with (except for covenants, agreements or conditions that are qualified by materiality or material adverse effect, which shall be performed, satisfied and complied in all respects with) the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Buyer shall have received a certificate, duly executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Closing Date, addressed to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer in the form acceptable to the Buyer, in ; (xiii) the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory Company shall have delivered to the Buyer a letter from the Transfer Agent certifying the number of shares of Common Stock outstanding on the Closing Date immediately prior to the Closing; (xiv) the Common Stock (A) shall be listed on the Primary Market and an opinion (B) shall not have been suspended, as of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed by the SEC or the Primary Market from trading on the Primary Market nor shall suspension by the SEC or the Primary Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Primary Market or (II) by falling below the minimum maintenance requirements of the Primary Market; (xv) the Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the issuance and sale of the Securities, including without limitation, those required by the Primary Market, if any (other the Stockholder Approval); (xvi) no statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the consummation of any of the transactions contemplated by the Transaction Documents; (xvii) since the date of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect; (xviii) the Company shall have obtained approval of the Primary Market to list all of the Conversion Shares issuable pursuant to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; andNotes; (oxix) On the Buyer shall have received a letter on the letterhead of the Company, duly executed by the Chief Executive Officer of the Company, setting forth the wire amounts of the Buyer and the wire transfer instructions of the Company (the “Flow of Funds Letter”); (xx) from the date hereof to the Closing Date, (i) trading in securities on the New York Common Stock Exchange, Inc., shall not have been suspended by the AMEX, Nasdaq SEC or the Nasdaq Capital Primary Market (except for any suspension of trading of limited duration, which suspension shall be terminated prior to the Closing), and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Primary Market, nor shall a banking moratorium have been declared either by either federal the United States or state authorities.New York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Buyer, makes it impracticable or inadvisable to purchase the Securities at the Closing; (pxxi) ▇▇▇▇ ▇▇▇▇▇▇▇ the Company and its Subsidiaries shall have executed and delivered to the Buyers Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement as the Buyer or its counsel may reasonably request; (xxii) no bona fide dispute shall exist, by and between (or among) the Buyer, any holder of Notes, and/or the Company, which dispute is reasonably related to this Agreement, any of the Securities and/or the transactions contemplated hereby or thereby, as applicable; and (xxiii) the Company a Lockup and its Subsidiaries shall have delivered to the Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement in as the form attached as Annex IXBuyer or its counsel may reasonably request.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Debentures on or before the Closing Date (any or all of which may be waived is conditioned upon: a. Acceptance by the Buyer in its sole discretion): (a) No legal actionCompany of this Agreement for the sale of Debentures, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated as indicated by execution of this Agreement; (b) b. Delivery by the Company to the Escrow Agent of the Debentures, in accordance with this Agreement; c. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated before the Closing DateDate and as to Debentures, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect conditions set forth in subparagraphs (a), (b) and (c) of this Section 7;Paragraph 4g; and (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) d. On the Closing Date, the Buyer shall have having received (i) an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in Annex III attached hereto, (ii) the Registration Rights Agreement, and (iii) the Warrants. (o) On e. No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement or the Transaction Documents, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement or the Transaction Documents. f. From and after the date hereof to and including the Closing Date, (i) the trading of the Common Stock shall not have been suspended by the SEC, or the NASD and trading in securities generally on the New York Stock Exchange, Inc.NASDAQ/Small Cap, the AMEXor NASD OTC Bulletin Board, Nasdaq or the Nasdaq Capital Market as applicable, shall not have been suspended or materially limited and (ii) a general moratorium limited, nor shall minimum prices been established for securities traded on commercial banking activities NASDAQ/Small Cap or the NASD OTC Bulletin Board, as applicable, nor shall there be any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the State reasonable judgment of New York shall not have been declared by either federal the Buyer makes it impracticable or state authoritiesinadvisable to purchase the Debentures. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note and acquire Preferred Shares, on the Warrant Closing Date, is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):: (a) No legal action, suit or proceeding The Company shall be pending or threatened which seeks have executed this Agreement and delivered the same to restrain or prohibit the transactions contemplated by this Agreement;Buyer. (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and Preferred Shares. (c) The Company shall have filed with the Secretary of this Section 7;State of the State of Delaware the Certificate of Designations in the form attached hereto as Exhibit A, and shall have delivered to the Buyer a certified copy thereof. (d) The Company shall have executed the Registration Rights Agreement and delivered the same to the Buyer. (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇W▇▇▇▇▇▇ ▇▇& S▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, LLP in the a form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and. (of) On The Company shall have received a temporary waiver or modification of certain of the financial covenants in any agreement governing debt of the Company or its Subsidiaries in effect on the Closing Date (the “Existing Debt Agreements”) on terms acceptable to the Buyer and the Company shall have delivered evidence of the same to the Buyer. (g) The Company shall have received a waiver of any “Change of Control” (or any similar concept) under any Existing Debt Agreement that would result from the Buyer and/or its affiliates’ acquisition of Common Stock (including the acquisition of the Preferred Shares or the shares of Common Stock issuable upon conversion of the Preferred Shares) on terms acceptable to the Buyer and the Company shall have delivered evidence of the same to the Buyer. (h) The Company shall have received a waiver of any “Sale Event” or “Change in Control” (or any similar concept) under any employment agreement of an employee of the Company or its subsidiaries that would result from the Buyer and/or its affiliates’ acquisition of Common Stock (including the acquisition of the Preferred Shares or the shares of Common Stock issuable upon conversion of the Preferred Shares) on terms acceptable to the Buyer and the Company shall have delivered evidence of the same to the Buyer. (i) The Company shall have received a waiver of any “Change in Control” (or any similar concept) under the Rubicon Technologies, Inc. 2022 Equity Incentive Plan or any applicable award agreement thereunder (or any successor equity incentive plan or award agreements) that would result from the Buyer and/or its affiliates’ acquisition of Common Stock (including the acquisition of the Preferred Shares or the shares of Common Stock issuable upon conversion of the Preferred Shares) on terms acceptable to Buyer and the Company shall have delivered evidence of the same to the Buyer. (j) The Board shall have formed a committee with authority to control the Company’s use of cash following the closing on terms acceptable to Buyer. Such committee shall review all the employment agreements in place and require changes to adjust them according to market benchmarks. The committee shall be chaired by a representative of Buyer and will include at least one additional independent member of the Board. (k) The Company shall have received a waiver from each holder of the Common Stock Purchase Warrants issued by the Company on June 7, 2023 (the “June 2023 Term Loan Warrants”) of the pre-emptive rights granted to such holder pursuant to the June 2023 Term Loan Warrants and the Company shall have delivered evidence of the same to the Buyer. (l) The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of Closing Date, as though made at such 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 to be performed, satisfied or complied with by the Company at or prior to the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (pm) ▇▇▇▇ ▇▇▇▇▇▇▇ No litigation, statute, rule, regulation, executive order, decree, ruling or injunction shall have executed and delivered to been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the Buyers and matters contemplated hereby which prohibits the Company a Lockup Agreement in consummation of any of the form attached as Annex IXtransactions contemplated by this Agreement.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Preferred Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks Delivery by the Company to restrain or prohibit the transactions contemplated by Escrow Agent of the certificates for the Preferred Shares and the Warrants in accordance with this Agreement; (b) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or Chief Financial Officer, to of the effect set forth in subparagraphs (a), (b) Company confirming such matters and such other matters as the Buyer may reasonably request; (c) The receipt by the Buyer of this Section 7confirmation of the filing with the Secretary of State of the State of Delaware of the Certificate of Designations; (ed) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Amended and Restated Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, Date and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerhereby; (fe) The Collateral Transfer Agent shall have executed and delivered to the Company Transfer Agent Agreement in the Pledge and Security Agreement and a copy thereof duly executed and delivered form attached hereto as Annex V; and (f) Receipt by the Company, shall have been furnished to Buyer on the Buyer; (g) The Buyer shall have received from the Company customary, current search reports Closing Date of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇▇▇ Eng Linn & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On , to the Closing Dateeffect set forth in Annex VII attached hereto, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State an opinion of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ shall have executed , Esq., General Counsel of the Company, dated the Closing Date, in form, scope and delivered substance reasonably satisfactory to the Buyers and Buyer, to the Company a Lockup Agreement effect set forth in the form Annex VIII attached as Annex IXhereto.

Conditions to The Buyer’s Obligation to Purchase. (a) The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note and acquire Common Shares at the Warrant Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):discretion (if permissible under applicable law) by providing the Company with prior written notice thereof: (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bi) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants duly executed and agreements delivered to the Buyer each of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date;which it is a party. (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (dii) The Company shall have delivered to the Buyer a certificatecopy of the Irrevocable Transfer Agent Instructions, dated in the form reasonably acceptable to the Buyer, which instructions shall have been delivered to and acknowledged in writing by the Company’s transfer agent. (iii) The representations and warranties of the Company set forth in Section 3(a) (Organization and Qualification), Section 3(b) (Subsidiaries), Section 3(c) (Authorization; Enforcement; Validity), Section 3(d) (Issuance of Common Shares), Section 3(q) (Equity Capitalization) (except for any changes in capitalization that either (1) decrease the Fully Diluted Shares Outstanding or (2) do not, individually or in the aggregate, increase the Fully Diluted Shares Outstanding by more than three-fourths of a percent (0.75%)), Section 3(hh) (No Disqualification Events) and the second sentence of Section 3(h) (No General Solicitation; Placement Agent’s Fees) (collectively, the “Company Excepted Representations”) shall be true and correct in all respects as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, duly executed except that those representations and warranties that address matters only as of a particular date need only be true and correct as of such date. All of the other representations and warranties of the Company contained in this Agreement, in each case disregarding and without giving any effect to all qualifications and exceptions contained therein relating to materiality or Company Material Adverse Effect or any similar standard or qualification, shall be true and correct as of the date hereof and as of the Closing Date as though made on and as of the Closing Date, except that those representations and warranties that address matters only as of a particular date need only be true and correct as of such date and except for such failures to be true and correct that, individually and in the aggregate, have not had, and would not be likely to have, a Company Material Adverse Effect. (iv) The Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by its Chief Executive Officer the Company at or Chief Financial Officer, prior to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7;Closing Date. (ev) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the issuance and sale of the Common Shares to the Buyer. (vi) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, all of the Secretary documents and other items required to be delivered by the Company pursuant to Section 1(d)(ii). (vii) Each of the Company certifying (1) Authorized Shares Proposal and the Nasdaq Approval Proposal shall have been approved by the requisite vote of the Company’s stockholders as determined in accordance with applicable law and the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the BuyerBylaws; (fviii) No Governmental Authority of competent jurisdiction shall have enacted, issued or entered any restraining order, injunction or similar order or legal restraint or prohibition which remains in effect that enjoins or otherwise prohibits the consummation of the Proposed Transactions, including, without limitation, the Share Issuance and Sale, which order, injunction, legal restraint or prohibition shall have become final and non-appealable. (ix) Since the date hereof, no change or event shall have occurred and no circumstances shall exist which have had or would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect. (x) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer parties hereto shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authoritiesCFIUS Approval. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer to purchase the Note and acquire Units at the Warrant Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):: (a) No legal action, suit or proceeding The Company shall be pending or threatened which seeks have executed this Agreement and delivered the same to restrain or prohibit the transactions contemplated by this AgreementBuyer; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated certificate evidencing the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and Units; (c) The Company and all other members of this Section 7; (e) The the Company shall have delivered to executed the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed Amendment and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished same to the Buyer; (gd) The Buyer Company shall have received from caused ETI to execute a letter agreement in the Company customary, current search reports form attached hereto as Exhibit B providing the Buyer with an advance exclusivity period to negotiate financing with regard to any future water filtration opportunities in other than the Field of Use (as defined in the relevant Uniform Commercial Code filing offices, License Agreement) (the content of which reports shall be satisfactory “Letter Agreement”) and delivered the same to the Buyer; (he) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have been appointed to the Board of Managers as the Class C Designee; (f) ETI shall be the managing member of the Company as of the Closing Date; (g) ▇▇▇▇ ▇▇▇▇▇▇ shall be the Chairman of the Board of Managers as of the Closing Date; (h) ▇▇▇▇ ▇▇▇▇▇▇ shall have acquired (for services and upon conversion of his note to the Company) 3,185 Class C units of the Company on or prior to the Closing Date; (i) The members of the Board of Managers as of the date of this Agreement shall be the Board of Managers of the Company as of the Closing Date; (j) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and the Company shall have performed, satisfied and complied with the covenants, agreements and conditions required by this Agreement to be performed, satisfied or complied with by the Company at or prior to the Closing Date; (k) The Company shall have delivered to the Buyer a certificate, executed by a duly authorized officer or manager of the Company and dated as of the Closing Date, (i) certifying that the conditions specified in Section 3(c) above are satisfied in all material respects; (ii) attaching a true and correct copy of the Certificate of Formation; and (iii) attaching a true and correct copy of the Operating Agreement; (l) The Company shall have executed and delivered to the Buyers Clean Water Partners, LLC, a Delaware limited liability company, that certain Amended and the Company a Lockup Agreement Restated Replacement Secured Note in the form attached hereto as Annex IX.Exhibit C; (m) ETI, the Company and EES Operating, LLC shall have executed and delivered to each other that certain letter agreement regarding the guaranty by EES Operating, LLC of certain obligations of ETI and the related indemnity in the form attached hereto as Exhibit D (the “ETI Indemnity Letter”)

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the each Buyer’s 's obligation to purchase the a Note and acquire the Warrant Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the each Buyer in its their sole discretion): (a) No On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such datedate and, except for the approvals and filings referred to in clause (2) of Section 4(g), which shall have been obtained or made, on or before the Closing Date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer Buyers a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) ), and (c) of this Section 7; (e) The Company shall have delivered to the Buyer Buyers a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer Buyers shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Beckman, Lieberman & Barandes, LLP, counsel for the Company, dated t▇▇ ▇▇▇▇ing ▇▇▇▇, ▇ddr▇▇▇▇▇ ▇o the Closing DateBuyers, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇Buyers, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, substantially in the form attached as Annex VIII III; (g) The Company shall have delivered to the Buyers the waiver and otherwise consent of Metropolitan Venture Partners II, L.P., in form, scope and substance reasonably satisfactory to Buyers, substantially in the Buyerform attached as Annex IV; (h) The Company shall have delivered to the Buyers the waiver and consent of Mountain Meadow Farm, in form, scope and substance reasonably satisfactory to Buyers, substantially in the form attached as Annex V; and (oi) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire Preferred Shares on the Warrant Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No The Transfer Agent shall have agreed to and accepted the Transfer Agent Instruction in the form attached hereto as ANNEX II as evidenced by its execution thereof and returning a copy thereof to the Company, and the Company shall have furnished a copy thereof to the Buyer; (b) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bc) The representations and warranties of the Company contained in this Agreement shall have been true and correct on each other agreement or instrument executed and delivered by the date of Company in connection with this Agreement and shall be true and correct on the Closing Date as if given made on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), Date; and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents therein and required to be performed by the Company on or before the Closing Date; (cd) No event which, if the Note Preferred Shares were outstanding, (1) would constitute an Optional Redemption Event of Default or whichor, with the giving of notice or the passage lapse of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Optional Redemption Event shall have occurred and be continuing; (de) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ab), (b) c), and (cd) of this Section 7; (ef) The Company Buyer shall have delivered to received satisfactory confirmation of the filing with the Secretary of State of the State of Delaware of the Certificate of Designations; (g) The Buyer shall have received a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (gh) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLPMintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in ANNEX III attached hereto; and (oi) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the Commonwealth of Massachusetts or the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company to the Escrow Agent of the Note and the Warrants in accordance with this Agreement; (b) The Collateral Agent shall have executed and delivered to the Company the Security Agreement in the form attached hereto as ANNEX III; (c) The Transfer Agent shall have acknowledged in writing the Transfer Agent Instructions; (d) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (be) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date)Agreement, and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (cf) No event which, if the Note were outstanding, (1) would constitute an Event of Default or whichor, with the giving of notice or the passage of time, time or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or whichor, with the giving of notice or the passage lapse of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (dg) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its Chief Executive Financial Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ad), (b) e), and (cf) of this Section 7; (eh) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion opinions of Sichenzia ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, LLP, special counsel for the Company, and ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for Esq., General Counsel to the Company, each dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, substantially in the form of ANNEX VI and ANNEX VII attached hereto, respectively; (oj) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, American Stock Exchange or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of Colorado or the State of New York shall not have been declared by either federal or state authorities.; and (pk) ▇▇▇▇ ▇▇▇▇▇▇▇ The Company shall have executed obtained written waivers, in form and delivered substance reasonably satisfactory to the Buyers and Buyer, (1) by D&N Holding Company ("D&N") of the rights under the Subscription Agreement, dated as of June 7, 1993, between the Company and D&N, with respect to the purchase of certain securities by D&N, and shall have furnished a Lockup Agreement in copy of such waiver to the form attached as Annex IXBuyer and (2) by all persons listed on the Disclosure Statement by reason of the last sentence of Section 4(c).

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note and acquire Preferred Shares, on the Warrant Closing Date, is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided, that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):: (a) No legal action, suit or proceeding The Company shall be pending or threatened which seeks have executed this Agreement and delivered the same to restrain or prohibit the transactions contemplated by this Agreement;Buyer. (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of delivered to the Company contained herein or in any of Buyer the other Transaction Documents required to be performed by the Company on or before the Closing Date;Preferred Shares. (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, The Company shall have filed with the giving Secretary of notice or State of the passage State of timeDelaware the Certificate of Designations in the form attached hereto as Exhibit A, or both, would constitute an Event of Default and shall have occurred and be continuing or (2) would constitute delivered to the Buyer a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing;certified copy thereof. (d) The Company shall have delivered to the Buyer an opinion of W▇▇▇▇▇▇ & S▇▇▇▇▇ LLP in a certificate, dated form reasonably satisfactory to the Closing Date, duly executed by its Chief Executive Officer or Chief Financial OfficerBuyer. (i) Two existing members of the Board, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested be selected by the Buyer; (f) The Collateral Agent , shall have executed and delivered his or her resignation from the Board, to be effective upon the Company Buyer’s payment of the Pledge Purchase Price, and Security Agreement and a copy thereof duly executed and delivered by (ii) the CompanyBoard, with the approval of the Special Committee, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuanceapproved, by the AMEX and affirmative vote of at least two-thirds (2/3) of the Buyer shall have received written evidence of such approval by the AMEX; directors in office who are Qualifying Directors (n) On the Closing Dateas defined below), the appointment of two Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇designees (additional to A▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP) to fill the resulting vacancies. For purposes of this Section 6(f), counsel for “Qualifying Directors” means directors who either were directors on the Merger Date (as defined in the Tax Receivable Agreement, dated August 15, 2022, of the Company, dated ) or whose appointment or nomination for election was previously approved or recommended by a vote of at least two-thirds (2/3) of the Closing Date, addressed to the Buyer, directors then still in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities office who either were directors on the New York Stock Exchange, Inc., Merger Date or whose appointment or nomination for election was previously so approved or recommended by the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities directors referred to in the State of New York shall not have been declared by either federal or state authoritiesthis definition. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such datedate and, except for the approvals and filings referred to in clause (2) of Section 4(g), which shall have been obtained or made, on or before the Closing Date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) ), and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇M▇▇▇▇▇▇▇ & W▇▇▇▇▇▇▇ , LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form attached as ANNEX III-1; and (g) On the Closing Date, the Buyer and shall have received an opinion of G▇▇▇, M▇▇▇▇▇▇ & F▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLPL.L.P., intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form attached as ANNEX III-2; and (oh) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York or the State of Texas shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No The Collateral Agent shall have executed and delivered to the Company the Security Agreement and the Patent and Trademark Security Agreement and copies thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (b) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bc) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and, except for the approvals and filings referred to in clauses (3) (to the extent action is required by applicable law to be taken on or prior to the Closing Date), (5) and (6) of Section 4(g), which shall have been obtained or made, shall be true and correct on the Closing Date as if given made on and as of the Closing Date (except for Date, the representations given as and warranties of a specific date, which representations the Company contained in the Transaction Documents other than this Agreement shall be have been true and correct on the Closing Date as if made on and as of such date)the Closing Date, and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (cd) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (de) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, Officer to the effect set forth in subparagraphs (ab), (b) c), and (cd) of this Section 7; (ef) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form of ANNEX VI attached hereto; (h) On the Closing Date, the Buyer shall have received an opinion of the Law Offices of ▇▇▇▇▇ ▇ ▇▇▇▇▇, dated the Closing Date, addressed to the Buyer substantially in the form of ANNEX VII attached hereto; and (oi) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York or the Commonwealth of Pennsylvania shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer to purchase the Note and acquire Units at the Warrant Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):: (a) No legal action, suit or proceeding The Seller shall be pending or threatened which seeks have executed this Agreement and delivered the same to restrain or prohibit the transactions contemplated by this AgreementBuyer; (b) The Seller shall have delivered to FNF a certificate evidencing the Units, together with a transfer power duly endorsed. (c) The Seller, the Company, CWP and J▇▇▇ ▇▇▇▇▇▇ shall have executed the Operating Agreement, and delivered the same to the Buyer; (d) Each of the other Members shall have waived (i) the tag-along rights provided in Section 7.3 of the Operating Agreement and (ii) the right of first refusal provided in Section 7.4 of the Operating Agreement, (e) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations Seller shall be true and correct as of such the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and on or before the Closing Date the Company Seller shall have performed all covenants performed, satisfied and complied with the covenants, agreements of the Company contained herein or in any of the other Transaction Documents and conditions required by this Agreement to be performed performed, satisfied or complied with by the Company on at or before prior to the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (df) The Company Seller shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly authorized officer of the Secretary Seller and dated as of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading certifying that the conditions specified in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and Section 7 above are satisfied in all material respects; (ii) attaching a general moratorium on commercial banking activities in true and correct copy of the State Certificate of New York shall not have been declared by either federal or state authorities.Formation; and (iii) attaching a true and correct copy of the Operating Agreement; and (pg) ▇▇▇▇ ▇▇▇▇▇▇▇ The Company and the Seller shall have executed and delivered entered into a Master Manufacturing Agreement in a form acceptable to the Buyers Buyer, which shall include an initial two-year period of exclusivity and an additional two-year period of non-exclusivity, wherein, during the entire term of such Master Manufacturing Agreement, the Seller will manufacture equipment on an as-requested basis for the Company without any minimum volume or purchase commitment by the Company; (h) The Seller and the Company a Lockup shall have entered into an amendment the Technology License Agreement to the extent required by the Buyer; and (i) The Buyer shall be satisfied, in the form attached as Annex IXBuyer’s sole and absolute discretion, with their due diligence relating to the Company and the Seller.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer to purchase the Note and acquire Units at the Warrant Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):: (a) No legal action, suit or proceeding The Seller shall be pending or threatened which seeks have executed this Agreement and delivered the same to restrain or prohibit the transactions contemplated by this AgreementBuyer; (b) The Seller shall have delivered to FNF a certificate evidencing the Units, together with a transfer power duly endorsed; (c) The Seller shall have agreed to: (i) sell equipment unit 13 to the Company and (ii) grant to the Company a right of first refusal to purchase unit 14 pursuant to the Right of First Refusal attached as Exhibit A; (d) Each of the other Members of the Company shall have executed and delivered that certain Amendment Number One to the Operating Agreement attached as Exhibit B, which will include: (i) a waiver of (A) the tag-along rights provided in Section 7.3 of the Operating Agreement and (B) the right of first refusal provided in Section 7.4 of the Operating Agreement with respect to the exercise of the Prior FNF Option, the issuance of the FNF Option, and any exercise of the FNF Option; (ii) upon the closing of the purchase of the Units pursuant to the exercise of the FNF Option, the amendment of the composition of the Board of Directors of the Company and the number of members of the Board of Directors of the Company that the Seller and the Buyer may each designate; and (iii) appoint the Buyer as the tax matters partner of the Company; (e) The Company and Seller shall have executed and delivered that certain Second Amendment to Technology License Agreement attached as Exhibit C; (f) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations Seller shall be true and correct as of such the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), and on or before the Closing Date the Company Seller shall have performed all covenants performed, satisfied and complied with the covenants, agreements of the Company contained herein or in any of the other Transaction Documents and conditions required by this Agreement to be performed performed, satisfied or complied with by the Company on at or before prior to the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (dg) The Company Seller shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly authorized officer of the Secretary Seller and dated as of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading certifying that the conditions specified in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and Section 7 above are satisfied in all material respects; (ii) attaching a general moratorium on commercial banking activities true and correct copy of the Certificate of Formation; and (iii) attaching a true and correct copy of the Operating Agreement; and (h) The Buyer shall be satisfied, in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed Buyer’s sole and delivered absolute discretion, with their due diligence relating to the Buyers Company and the Company a Lockup Agreement in the form attached as Annex IXSeller.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note and acquire Securities at the Warrant Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):discretion by providing the Company with prior written notice thereof: (a) No legal actioninjunction, suit restraining order or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated order of any nature by this Agreement; (b) The representations and warranties of the Company contained in this Agreement a governmental authority shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and issued as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on that would prevent or before materially interfere with the Closing Date the Company shall have performed all covenants and agreements consummation of the Company contained herein Offering or in any of the other Transaction Documents required transactions contemplated hereby and thereby; and no stop order suspending the qualification or exemption from qualification of any of the Notes in any jurisdiction shall have been issued and no proceeding for that purpose shall have been commenced or, to the knowledge of the Company, be performed by the Company on pending or before contemplated as of the Closing Date;. (b) No action shall have been taken and no law shall have been enacted, adopted or issued that would, as of the Closing Date, prevent the consummation of the Offering or any of the transactions contemplated hereby or thereby. No proceeding shall be pending or, to the knowledge of the Company, threatened other than proceedings (A) that if adversely determined could not, individually or in the aggregate, adversely affect the issuance or marketability of the Notes, and (B) that could not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. (c) No At the Closing Date, since the date hereof, no event whichor events have occurred, if no information has become known nor does any condition exist that could, individually or in the Note were outstandingaggregate, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall reasonably be expected to have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing;Material Adverse Effect. (d) The Company Buyer shall have delivered to received on the Buyer Closing Date: (i) a certificate, dated the Closing Date, duly executed by its Chief Executive Officer the Secretary of the Company or Chief Financial Officersuch Guarantor, certifying as to the effect set forth (i) the resolutions consistent with Section 3(b) as adopted by the Company’s or Guarantor’s, as applicable, Board of Directors in subparagraphs (a)a form reasonably acceptable to the Buyer, (bii) the Certificate of Incorporation and (ciii) of this Section 7the Bylaws, each as in effect at the Closing; (eii) The Company shall have delivered the opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel to the Buyer a certificateCompany and the Guarantors, dated the Closing Date, substantially in the form of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the BuyerExhibit A attached hereto; (fiii) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for to the Company and the Guarantors, dated the Closing Date, substantially in the form of Exhibit B attached hereto; and (iv) the opinion of the general counsel of the Company, dated the Closing Date, addressed to the Buyer, substantially in the form of Exhibit C attached hereto. The opinions delivered pursuant to this Section 6(d) shall be addressed and delivered to the Closing Agent and the Buyer acknowledges that it (x) is not the beneficiary of such opinions and (y) has no right to rely on such opinions. (e) Each of the Transaction Documents shall have been executed and delivered by each of the parties thereto, and the Buyer shall have received a fully executed original of each Transaction Document other than the Other Purchase Agreements. (f) The Collateral Agent shall have received on the Closing Date: (i) appropriately completed copies of Uniform Commercial Code financing statements naming, in each case, each of the Company and each Guarantor as Annex VII a debtor and otherwise the Collateral Agent as the secured party, or other similar instruments or documents to be filed under the Uniform Commercial Code of all jurisdictions as may be necessary to perfect the security interests of the Collateral Agent pursuant to the Collateral Documents; (ii) appropriately completed copies of Uniform Commercial Code Form UCC-3 termination statements necessary to release all liens (other than Permitted Liens) of any Person in formany collateral described in any Collateral Documents previously granted by any Person; (iii) certified copies of Uniform Commercial Code Requests for Information or Copies (Form UCC-11), scope or a similar search report certified by a party acceptable to the Collateral Agent, dated a date reasonably near to the Closing Date, listing all effective financing statements which name the Company or any Guarantor (under its present name and any previous names) as the debtor, together with copies of such financing statements (none of which shall cover any collateral described in any Collateral Document, other than such financing statements that evidence permitted liens); (iv) all Pledged Equity Interests and Pledged LLC Interests (each as defined in the Security Agreement) issued by each Subsidiary of the Company in favor of the Company or any Guarantor, together with undated stock power(s) or other instruments of transfer executed in blank; (v) copies of the policies of insurance (or binders or insurance certificates in respect thereof), as are required by Section 4.09 of the Indenture; and (vii) such other approvals, opinions, or documents as either the Buyer or the Collateral Agent may reasonably request in form and substance reasonably satisfactory to the Buyer or the Collateral Agent, as case may be. The Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇its counsel shall be satisfied that (i) the liens granted to the Collateral Agent, LLP, intellectual property counsel for the benefit of the Secured Parties (as defined in the Security Agreement) in the collateral described in the Collateral Documents is of the priority described in the Confidential Information Memorandum and the Collateral Documents; and (ii) no lien exists on any of the collateral described in the Collateral Documents other than the liens created in favor of the Collateral Agent, for the benefit of the Secured Parties, pursuant to the Collateral Documents, and other permitted liens. (g) All Uniform Commercial Code financing statements or other similar financing statements and Uniform Commercial Code Form UCC-3 termination statements required pursuant to clause (g)(i) and (ii) above (collectively, the “Filing Statements”) shall have been delivered to CT Corporation System or another similar filing service company acceptable to the Buyer (the “Filing Agent”). The Filing Agent shall have acknowledged in a writing reasonably satisfactory to the Buyer and its counsel (i) the Filing Agent’s receipt of all Filing Statements, (ii) that the Filing Statements have either been submitted for filing in the appropriate filing offices or will be submitted for filing in the appropriate offices within ten days following the Closing Date and (iii) that the Filing Agent will notify the Collateral Agent and the Buyer and its counsel of the results of such submissions within 30 days following the Closing Date. (h) The representations and warranties of the Company and each Guarantor shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specified date) and the Company and each Guarantor shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company and each Guarantor at or prior to the Closing Date. The Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer. (i) The Buyer shall have received a certificate, dated the Closing Date, addressed executed by an executive officer of the Company, certifying that the Company has received duly executed Other Purchase Agreements from the Other Buyers that, together with this Agreement, relate to the Buyer, in issuance and sale of $225,000,000 aggregate principal amount of the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authoritiesNotes. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire Preferred Shares on the Warrant Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company to the Escrow Agent of the certificates for the Preferred Shares in accordance with this Agreement; (b) The Conversion Agent shall have executed and delivered the Conversion Agent Agreement in the form attached hereto as ANNEX III. (c) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bd) The representations and warranties of the Company contained in this Agreement shall have been true and correct on each other agreement or instrument executed and delivered by the date of Company in connection with this Agreement and shall be true and correct on the Closing Date as if given made on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), Date; and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents and therein which are required to be performed by the Company on or before the Closing Date; (ce) No event which, if the Note Preferred Shares were outstanding, (1) would constitute an Optional Redemption Event of Default or whichor, with the giving of notice or the passage lapse of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Optional Redemption Event shall have occurred and be continuing; (df) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its Chief Executive Financial Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ac), (b) d), and (ce) of this Section 7; (eg) The Company Buyer shall have delivered received satisfactory confirmation of the filing of the Certificate of Designations with the Secretary of State of the State of Delaware; (h) The Conversion Shares shall have been approved for listing, subject to official notice of issuance, by the AMEX and the Buyer shall have received evidence or confirmation, reasonably acceptable to the Buyer, of such approval by the AMEX; (i) The Buyer shall have received a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, Date addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX IV attached hereto; (ok) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, AMEX or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of Maryland or the State of New York shall not have been declared by either federal or state authorities.; and (pl) ▇▇▇▇ ▇▇▇▇▇▇▇ The closing under each of the Other Subscription Agreements shall have executed and delivered to occurred at or before the Buyers and time of the Company a Lockup Agreement in the form attached as Annex IXclosing under this Agreement.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Preferred Stock on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion):is conditioned upon: (a) No legal actionAcceptance by the Company of this Agreement, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated as indicated by execution of this Agreement; (b) Delivery by the Company to the Escrow Agent of the certificate for the Preferred Stock in accordance with this Agreement; (c) The representations accuracy in all material respects on the Closing Date of the representations, covenants and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date)Date, and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuingas to Additional Preferred Stock; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have has received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise Date in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in Annex III attached hereto, and the execution and delivery of the Registration Rights Agreement annexed hereto as Annex IV and the Warrant annexed hereto as Annex VI; (e) No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement; and (of) On From and after the date hereof to and including the initial Closing Date, (i) the trading of the Common Stock shall not have been suspended by the SEC, the NASD, or trading in securities generally on the New York Stock Exchange, Inc., the AMEX, Exchange or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium limited, nor shall minimum prices been established for securities traded on commercial banking activities Nasdaq, nor shall there by any outbreak or escalation of hostilities involving the United States or any material adverse change in any financial market that in either case in the State reasonable judgment of New York shall not have been declared by either federal the Buyer makes it impracticable or state authoritiesinadvisable to purchase the Preferred Stock. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company to the Buyer of the Note in accordance with this Agreement; (b) If the Closing Date is less than 90 days after the Execution Date, the Collateral Agent shall have executed and delivered to the Company the Security Agreement in the form attached hereto as Annex III and entered into such other agreements with respect to the Collateral in form satisfactory to the Buyer; (c) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bd) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and and, except for the approvals referred to in clauses (1)-(4) of Section 4(h) which shall have been obtained, shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, date which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (ce) The Registration Statement shall have been declared effective by the SEC and no stop-order or similar proceeding relating to the Registration Statement shall be pending or threatened; (f) No event which, if the Note were was outstanding, (1) would constitute an Event of Default or whichor, with the giving of notice or the passage of time, time or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or whichor, with the giving of notice or the passage lapse of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (dg) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its President and Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ac), (bd), (e) and (cf) of this Section 7; (eh) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have having received an opinion of Sichenzia Brob▇▇▇, ▇▇le▇▇▇ & ▇arr▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer Buyer, substantially in the form of Annex VI attached hereto, and an opinion of Penn▇▇ & ▇▇▇dmo▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property special counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, substantially in the form of Annex VII attached hereto; (oj) On the Closing Date, the Buyer having received an opinion of the Law Offices of Bria▇ ▇ ▇▇▇▇▇, ▇▇ted the Closing Date, addressed to the Buyer, substantially in the form of Annex V attached hereto; (k) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, American Stock Exchange or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of California or the State of New York shall not have been declared by either federal or state authorities.; and (pl) ▇▇▇▇ ▇▇▇▇▇▇▇ On or prior to the Closing Date, the Buyer shall have executed and delivered to received a copy of the Buyers and the Company a Lockup Agreement MMC/GATX Amendment substantially in the form of Annex VIII attached as Annex IXhereto duly executed on behalf of the Company and the Senior Lender.

Conditions to The Buyer’s Obligation to Purchase. (a) The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note and acquire at the Warrant Closing is conditioned upon satisfaction subject to the satisfaction, at or before each applicable Closing Date, of each of the following conditions, provided that these conditions precedent on or before are for the Closing Date (any or all of which Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):discretion by providing the Seller with prior written notice thereof: (ai) No legal actionThe Seller, suit or proceeding Company and each subsidiary (as the case may be) shall be pending or threatened have duly executed and delivered to the Buyer each of the Transaction Documents to which seeks it is a party and the Company shall have duly executed and delivered to restrain or prohibit the transactions contemplated Buyer the Common Shares being purchased by the Buyer at the Closing pursuant to this Agreement;. (bii) The representations Each and warranties every representation and warranty of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and Seller shall be true and correct on in all material respects as of the Closing Date as if given on date when made and as of the Closing Date as though originally made at that time (except for representations given and warranties that speak as of a specific date, which representations shall be true and correct in all material respects as of such date)) and the Seller shall have performed, satisfied and on complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or before complied with by the Seller and Company at or prior to the Closing Date the Company Date. (v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have performed all covenants and agreements been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction that prohibits the Company contained herein or in consummation of any of the other Transaction Documents required to be performed transactions contemplated by the Company on Transaction Documents, and no legal proceedings shall be in progress or before pending by any Person that seeks to enjoin, prohibit or otherwise adversely affect any of the Closing Date;transactions contemplated by the Transaction Documents. (cvi) No event which, if the Note were outstanding, (1) would constitute an Event or series of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default events shall have occurred and be continuing that reasonably would have or (2) would constitute result in a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing;Material Adverse Effect. (dvii) Neither the Company nor any of its subsidiaries has filed for and/or is subject to any bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for relief under any bankruptcy law or any law for the relief of debtors instituted by or against the Company. (viii) The Company and its subsidiaries shall have delivered to the Buyer a certificatesuch other documents, dated the Closing Date, duly executed by its Chief Executive Officer instruments or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company certificates relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters by this Agreement as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, its counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance may reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authoritiesrequest. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s obligation to purchase the Note Notes and acquire the Warrant is conditioned upon satisfaction and subject to the fulfillment, on or prior to the Closing Date, of all of the following conditions precedent on or before the Closing Date (conditions, any or all of which may be waived in whole or in part by the Buyer in its sole discretion):Buyer: (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by a. The execution and delivery of this Agreement; (b) The representations and warranties of , the Company contained in this Agreement shall have been true and correct on Security Agreement, the date of this Agreement and shall be true and correct on Request, the Closing Date Escrow Agreement, the Transfer Agent Letter and, as if given on and as of the Closing Date (except for representations given as of a specific dateapplicable, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if b. The delivery by the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificateof the Notes and the Warrant, dated each in original form, duly executed by the Company, in accordance with this Agreement; c. On the Closing Date, duly each of the Transaction Documents executed by its Chief Executive Officer the Company on or Chief Financial Officer, to before such date shall be in full force and effect and the effect set forth Company shall not be in subparagraphs (a), (b) and (c) of this Section 7default thereunder; (e) The Company shall have delivered d. On or prior to the Buyer a certificate, dated the Closing Date, the Share Reserve shall be sufficient to effect the full conversion of the Secretary Notes and exercise of the Warrant as of the Closing Date; e. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as contained in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents Documents, each as if made on such date, and the performance by the Company on or before such date of all covenants and agreements of the Company required to be performed on or before such date; f. There shall not be in effect any law, rule or regulation prohibiting or restricting the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerhereby, or requiring any consent or approval which shall not have been obtained; (f) The Collateral Agent shall have executed g. From and delivered after the date hereof to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On including the Closing Date, each of the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, following conditions will remain in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, effect: (i) the trading of the Common Stock shall not have been suspended by the SEC or on the Principal Trading Market; (ii) trading in securities generally on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Principal Trading Market shall not have been suspended or materially limited limited; (iii), no minimum prices shall been established for securities traded on the Principal Trading Market; (iv) there shall not have been any material adverse change in any financial market; and (v) there shall not have occurred any Material Adverse Effect; h. Except for any notices required or permitted to be filed after the Closing Date with certain federal and state securities commissions, the Company shall have obtained (i) all governmental approvals required in connection with the lawful sale and issuance of the Securities, and (ii) a general moratorium on commercial banking activities all third party approvals required to be obtained by the Company in connection with the State execution and delivery of New York the Transaction Documents by the Company or the performance of the Company’s obligations thereunder; and i. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents and instruments incident to such transactions shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed be reasonably satisfactory in substance and delivered form to the Buyers and the Company a Lockup Agreement in the form attached as Annex IXBuyer.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company of the Note in accordance with this Agreement. (b) On the Closing Date, the issuance of the Note under this Agreement has not been enjoined (temporarily or permanently), and no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement;. (bc) The representations and warranties of the Company contained in this Agreement that are qualified as to materiality shall have been be true and correct, and the representations and warranties of the Company set forth in this Agreement that are not so qualified shall be true and correct on in all material respects, in each case as of the date of this Agreement and shall be true and correct on as of the Closing Date Date, as if given though made on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such that date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents this Agreement required to be performed by the Company on or before the Closing Date;. (cd) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or whichcontinuing. Since January 31, with the giving of notice or the passage of time1999, or bothand except as disclosed in SEC Reports filed since that date, would constitute a Repurchase Event there shall have occurred been no event or development, and be continuing; (d) The Company no information shall have delivered become known, that, individually or in the aggregate, has or would be reasonably likely to the Buyer have a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7;Material Adverse Effect. (e) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, of the Secretary duly executed by an officer of the Company certifying to the effect set forth in subparagraphs (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Dateb), (2c) all resolutions of the Board of Directors and (and committees thereofd) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer;Section 7. (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion the opinion, dated as of Sichenzia the Closing Date and addressed to the Buyer, of ▇▇▇▇, Weiss, Rifkind, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached to this Agreement as Annex VII and B or otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company to the Escrow Agent of the Note and the Warrants in accordance with this Agreement; (b) The Transfer Agent shall have executed and delivered the Transfer Agent Agreement; (c) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bd) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and and, except for the approvals referred to in clauses (1)-(4) of Section 4(h), which shall have been obtained, shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (ce) No event which, if the Note were outstanding, (1) would constitute an Event of Default or whichor, with the giving of notice or the passage of time, time or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or whichor, with the giving of notice or the passage lapse of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (df) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (ac), (b) d), and (ce) of this Section 7; (eg) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Godward LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form of Annex V attached hereto; (i) On the Closing Date, the Buyer and shall have received an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman Lyon & ▇▇▇▇▇, Lyon LLP, intellectual property special counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, substantially in the form of Annex VI attached hereto; and (oj) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of California or the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the each Buyer’s obligation to purchase the a Note and acquire the Warrant Warrants and the Additional Warrants is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the each Buyer in its their sole discretion): (a) No On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (b) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such datedate and, except for the approvals and filings referred to in clause (2) of Section 4(g), which shall have been obtained or made, on or before the Closing Date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer Buyers a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) ), and (c) of this Section 7; (e) The Company shall have delivered to Buyers the Buyer Security Agreement substantially in the form attached as Annex III. (f) The Company shall have delivered to the Buyers a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer Buyers shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇A▇▇▇▇▇▇ ▇▇▇▇▇▇▇ , LLP, counsel for the Company, dated the Closing Date, addressed to the BuyerBuyers, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇Buyers, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, substantially in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory V; (h) The Company shall have delivered to the Buyer; andBuyers the waiver and consent to the transactions contemplated hereby of the Senior Lender; (oi) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEXAmerican Stock Exchange, Inc. or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (pj) ▇▇▇▇ ▇▇▇▇▇▇▇ On the Closing Date, Sigma Capital Advisors, LLC (“Sigma Advisors”) and the Company shall have executed entered into an advisory services agreement in form and substance satisfactory to Sigma Advisors providing for payment of the Advisory Fee and the issuance of the Additional Warrants. (k) The Company shall have caused to be delivered to the Buyers Buyers, in form and substance satisfactory to Buyers, a majority written stockholder’s consent whereby Old Berliner Communications, Inc., the majority shareholder of the Company, approves the Charter Amendment and approval of the Board of Directors of the Company a Lockup Agreement of the Charter Amendment. (l) The Company shall have caused BCI Communications, Inc. to have delivered to Buyers the Guaranty substantially in the form attached as Annex IXVI.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No Delivery by the Company to the Buyer of the Note on the Closing Date in accordance with this Agreement; (b) On the Closing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement; (bc) The representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date)Agreement, and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date; (cd) The Registration Statement shall have been declared effective by the SEC and no stop-order or similar proceeding relating to the Registration Statement shall be pending or threatened; (e) No event which, if the Note were was outstanding, (1) would constitute an Event of Default or whichor, with the giving of notice or the passage of time, time or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or whichor, with the giving of notice or the passage lapse of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (df) The Company shall have delivered to the Buyer a its certificate, dated the Closing Date, duly executed by its President and Chief Executive Officer or Chief Financial Officer, Operating Officer to the effect set forth in subparagraphs (ab), (bc), (d) and (ce) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have (1) received from written evidence reasonably satisfactory to the Company customary, current search reports Buyer of the relevant Uniform Commercial Code filing officesrepayment in full of the Sumitomo Loan or (2) a written waiver from Sumitomo Bank, the content of which reports shall be Ltd., in form, scope and substance reasonably satisfactory to the Buyer, regarding the transactions contemplated by this Agreement; (h) All filings of financing statements necessary On or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered prior to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received written confirmation from the transfer agent of the Company that the instructions set forth in ANNEX VII attached hereto and the form of opinion set forth in ANNEX VIII attached hereto and required to be furnished by Company counsel to the transfer agent pursuant to Section 8(c)(12) are satisfactory for the purposes of causing certificates for the Shares to be issued and delivered to or at the direction of the Buyer without further action by the Company, the Buyer or any other person (other than completion, execution and delivery by the Buyer of a Notice of Conversion of Convertible Note in the form attached to the Note); (i) On the Closing Date, the Buyer having received an opinion of Sichenzia Morg▇▇ ▇▇▇▇▇ & ▇ock▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and, substantially in the form of ANNEX V attached hereto, and an opinion of Barb▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇q., Senior Vice President and General Counsel of the Company, dated the Closing Date and addressed to the Buyer, in form, scope and substance reasonably acceptable to the Buyer, substantially in the form of ANNEX VI attached hereto; (oj) On the Closing Date, the Buyer having received an opinion of the Law Offices of Bria▇ ▇ ▇▇▇▇▇, ▇▇ted the Closing Date, addressed to the Company substantially in the form of ANNEX IV attached hereto; (k) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, American Stock Exchange or Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the Commonwealth of Pennsylvania or the State of New York shall not have been declared by either federal or state authorities.; and (pl) ▇▇▇▇ ▇▇▇▇▇▇▇ The Pledgee shall have executed and delivered to the Buyers and Company the Company a Lockup Security Agreement in the form attached hereto as Annex IXANNEX III.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Common Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No The receipt and acceptance by the Buyer of this Agreement as evidenced by execution of this Agreement by the Buyer and delivery of an executed counterpart of this Agreement to the Company or its legal actioncounsel; (b) Delivery by the Company to the Buyer (or its counsel) of the certificates for the Common Shares, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by Callable Warrants and the Class A Warrants in accordance with this Agreement; (bc) The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or Chief Financial Officer, to of the effect set forth in subparagraphs (a), (b) Company confirming such matters and (c) of this Section 7such other matters as the Buyer may reasonably request; (ed) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation Incorporation, as amended, and By-Laws of the Company as in effect on the Closing Date, Date and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerhereby; (fe) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered Receipt by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date of an opinion of Sichenzia ▇▇▇▇ Ropes & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in such form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX IV attached hereto. (of) On From the date hereof to the Closing Date, (i) trading in the Company's Common Stock shall not have been suspended by the SEC and trading in securities on the New York Stock Exchange, Inc., the AMEX, generally as reported by Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited limited, and the Common Stock shall be listed on Nasdaq. (iig) a general moratorium on commercial banking activities in No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the State consummation of New York any of the transactions contemplated by this Agreement, the Warrants or the Registration Rights Agreement. The NASD shall not have been declared objected or indicated that it may object to the consummation of any of the transactions contemplated by either federal or state authoritiesthis Agreement. (ph) ▇▇▇▇ ▇▇▇▇▇▇▇ The Company and the Buyer shall have executed and delivered the Registration Rights Agreement. (i) The Company shall have delivered to the Buyers and Buyer such other documents relating to the Company a Lockup transactions contemplated by this Agreement in as the form attached as Annex IXBuyer or its counsel may reasonably request.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that obligation of the Buyer’s obligation Buyer hereunder to purchase the Note Common Shares and acquire the Warrant Warrants at the Closing is conditioned upon satisfaction of subject to the following conditions precedent on satisfaction, at or before the Closing Date (any or all Date, of which each of the following conditions, provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion):discretion by providing the Company with prior written notice thereof: (a) No legal actionThe Company shall have duly executed and delivered to the Buyer each of the Transaction Documents, suit and the Company shall have (A) caused the Transfer Agent to credit 196,104 Common Shares to the Buyer’s or proceeding shall be pending its designee’s balance account with DTC through its Deposit/Withdrawal at Custodian system, (B) deliver to the Buyer the Series C Warrant (initially for an aggregate of up to [230,639] Series C Warrant Shares), duly executed on behalf of the Company and registered in the name of the Buyer or threatened which seeks its designee, and (C) deliver to restrain the Buyer the Series D Warrant (initially for an aggregate of up to [426,743] Series D Warrant Shares), duly executed on behalf of the Company and registered in the name of the Buyer or prohibit the transactions contemplated by this Agreement;its designee. (b) The representations and warranties of the Company contained in this Agreement Buyer shall have been true received the opinion of Sheppard, Mullin, ▇▇▇▇▇▇▇ and correct on ▇▇▇▇▇▇▇ LLP, the date of this Agreement and shall be true and correct on the Closing Date as if given on and Company’s counsel, dated as of the Closing Date (except for representations given as of a specific dateDate, which representations shall be true and correct as of such date), and on or before in the Closing Date form reasonably acceptable to the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Date;Buyer. (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default The Company shall have occurred and be continuing or (2) would constitute delivered to the Buyer a Repurchase Event or whichcopy of the Irrevocable Transfer Agent Instructions, with in the giving of notice or form reasonably acceptable to the passage of timeBuyer, or both, would constitute a Repurchase Event which instructions shall have occurred been delivered to and be continuing;acknowledged in writing by the Company’s transfer agent. (d) The Company shall have delivered to the Buyer a certificate, dated certificate evidencing the formation and good standing of the Company and each of its Subsidiaries in each such entity’s jurisdiction of formation issued by the Secretary of State (or comparable office) of such jurisdiction of formation as of a date within ten (10) days of the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7;. (e) The Company shall have delivered to the Buyer a certificatecertificate evidencing the Company’s qualification as a foreign corporation and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which the Company conducts business and is required to so qualify, dated as of a date within ten (10) days of the Closing Date. (f) The Company shall have delivered to the Buyer a certificate, of in the form acceptable to the Buyer, executed by the Secretary of the Company certifying and dated as of the Closing Date, as to (1i) the resolutions consistent with Section 3(b) as adopted by the Company’s board of directors in a form reasonably acceptable to the Buyer, (ii) the Certificate of Incorporation and By-Laws of the Company and (iii) the Bylaws of the Company, each as in effect on at the Closing. (g) Each and every representation and warranty of the Company shall be true and correct as of the date when made and as of the Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date) and the Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required to be performed, satisfied or complied with by the Company at or prior to the Closing Date. The Buyer shall have received a certificate, duly executed by the Chief Executive Officer of the Company, dated as of the Closing Date, (2) all resolutions of to the Board of Directors (foregoing effect and committees thereof) of the Company relating as to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as may be reasonably requested by the Buyer in the form acceptable to the Buyer;. (fh) The Collateral Agent Company shall have executed and delivered to the Company Buyer a letter from the Pledge Transfer Agent certifying the number of shares of Common Stock outstanding on the Closing Date immediately prior to the Closing. (i) The Common Stock (A) shall be designated for quotation or listed (as applicable) on the Principal Market and Security Agreement and a copy thereof duly executed and delivered (B) shall not have been suspended, as of the Closing Date, by the CompanySEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Closing Date, either (I) in writing by the SEC or the Principal Market or (II) by falling below the minimum maintenance requirements of the Principal Market. (j) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Securities, including without limitation, those required by the Principal Market, if any. (k) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been furnished to enacted, entered, promulgated or endorsed by any court or Governmental Entity of competent jurisdiction that prohibits the Buyer;consummation of any of the transactions contemplated by the Transaction Documents. (gl) Since the date of execution of this Agreement, no event or series of events shall have occurred that reasonably would have or result in a Material Adverse Effect. (m) The Company shall have obtained approval of the Principal Market to list or designate for quotation (as the case may be) the Common Shares and the Warrant Shares. (n) The Buyer shall have received from a letter on the Company customary, current search reports letterhead of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice Chief Executive Officer of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated setting forth the Closing Date, addressed to wire transfer instructions of the Buyer, in Company (the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion “Flow of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; andFunds Letter”). (o) On From the date hereof to the Closing Date, (i) trading in securities on the New York Common Stock Exchange, Inc., shall not have been suspended by the AMEX, Nasdaq SEC or the Nasdaq Capital Principal Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing), and, (ii) at any time prior to the Closing Date, trading in securities generally as reported by Bloomberg L.P. shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York limited, or minimum prices shall not have been established on securities whose trades are reported by such service, or on the Principal Market, nor shall a banking moratorium have been declared either by either federal the United States or state authoritiesNew York State authorities nor shall there have occurred any material outbreak or escalation of hostilities or other national or international calamity of such magnitude in its effect on, or any material adverse change in, any financial market which, in each case, in the reasonable judgment of the Buyer, makes it impracticable or inadvisable to purchase the Securities at the Closing. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ The Registration Statement shall be effective and available for the issuance and sale to the Buyer hereunder of (i) 196,104 Common Shares, (ii) the Series C Warrant and up to 196,104 Series C Warrant Shares issuable upon exercise of the Series C Warrants and (iii) the Series D Warrant and up to 458,015 Series D Warrant Shares upon exercise of the Series D Warrant. (q) The Company shall have executed and delivered to the Buyers Buyer the Prospectus and the Prospectus Supplement (which may be delivered in accordance with Rule 172 under the 1933 Act). (r) The Company a Lockup and its Subsidiaries shall have delivered to the Buyer such other documents, instruments or certificates relating to the transactions contemplated by this Agreement in as the form attached as Annex IXBuyer or its counsel may reasonably request.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s obligation to purchase the Note and acquire Securities from the Warrant Company pursuant to this Agreement on the Closing Date is conditioned upon satisfaction and subject to the fulfillment, on or prior to the Closing Date, of all of the following conditions precedent on or before the Closing Date (conditions, any or all of which may be waived in whole or in part by the Buyer: a. The execution and delivery of this Agreement, the Transfer Agent Letter, the Secretary’s Certificate, and, as applicable, the other Transaction Documents by the Company; b. The delivery by the Company to the Buyer of the Note and the Warrant, each in its sole discretion): (a) No legal actionoriginal form, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit duly executed by the transactions contemplated by Company, in accordance with this Agreement; (b) c. On the Closing Date, each of the Transaction Documents executed by the Company on or before such date shall be in full force and effect and the Company shall not be in default thereunder; d. The Share Reserve shall be sufficient to effect the full conversion of the Note and exercise of the Warrant as of the Closing Date; e. The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct on the Closing Date other Transaction Documents, each as if given made on and as of the Closing Date (except for representations given as of a specific such date, which representations shall be true and correct as of such date), and the performance by the Company on or before the Closing Date the Company shall have performed such date of all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed by the Company on or before the Closing Datesuch date; (c) No event whichf. There shall not be in effect any law, if rule or regulation prohibiting or restricting the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of timetransactions contemplated hereby, or both, would constitute an Event of Default requiring any consent or approval which shall not have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuingbeen obtained; (d) The Company shall have delivered g. From and after the date hereof up to the Buyer a certificate, dated and including the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, each of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as following conditions will remain in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; effect: (i) The Collateral Agent the trading of the Common Stock shall not have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered been suspended by the Company, shall have been furnished to SEC or on the Buyer; Principal Trading Market; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (iii) trading in securities generally on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Principal Trading Market shall not have been suspended or materially limited limited; (iii) no minimum prices shall been established for securities traded on the Principal Trading Market; (iv) there shall not have been any material adverse change in any financial market; and (v) there shall not have occurred any Material Adverse Effect; h. Except for any notices required or permitted to be filed after the Closing Date with certain federal and state securities commissions, the Company shall have obtained (i) all governmental approvals required in connection with the lawful sale and issuance of the Securities, and (ii) a general moratorium on commercial banking activities all third party approvals required to be obtained by the Company in connection with the State execution and delivery of New York the Transaction Documents by the Company or the performance of the Company’s obligations thereunder; and i. All corporate and other proceedings in connection with the transactions contemplated at the Closing and all documents and instruments incident to such transactions shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed be reasonably satisfactory in substance and delivered form to the Buyers and the Company a Lockup Agreement in the form attached as Annex IXBuyer.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Common Shares and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks The receipt by the Buyer of the Company's executed signature page to restrain or prohibit the transactions contemplated by this Agreement; (b) Delivery by the Company to the Buyer (or its counsel) of the certificates for the Common Shares, the Callable Warrants and the Class A Warrants in accordance with this Agreement; (c) The accuracy in all material respects on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or Chief Financial Officer, to of the effect set forth in subparagraphs (a), (b) Company confirming such matters and (c) of this Section 7such other matters as the Buyer may reasonably request; (ed) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation Incorporation, as amended, and By-Laws of the Company as in effect on the Closing Date, Date and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by which may be the Buyersame resolutions adopted for the Prior Subscription Agreement if sufficient in the reasonable opinion of the Company's counsel); (fe) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered Receipt by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date of an opinion of Sichenzia ▇▇▇▇ Ropes & ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in such form, scope and substance reasonably satisfactory to the Buyer; and, to the effect set forth in ANNEX IV attached hereto. (of) On From the date hereof to the Closing Date, (i) trading in the Company's Common Stock shall not have been suspended by the SEC and trading in securities on the New York Stock Exchange, Inc., the AMEX, generally as reported by Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited limited, and the Common Stock shall be listed on Nasdaq. (iig) a general moratorium on commercial banking activities in No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits the State consummation of New York any of the transactions contemplated by this Agreement, the Warrants or the Registration Rights Agreement. The NASD shall not have been declared objected or indicated that it may object to the consummation of any of the transactions contemplated by either federal or state authoritiesthis Agreement. (ph) ▇▇▇▇ ▇▇▇▇▇▇▇ The Company and the Buyer shall have executed and delivered the Registration Rights Agreement. (i) The Company shall have delivered to the Buyers and Buyer such other documents relating to the Company a Lockup transactions contemplated by this Agreement in as the form attached as Annex IXBuyer or its counsel may reasonably request.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note Initial Shares and acquire the Warrant Warrants from the Company pursuant to this Agreement on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks Delivery by the Company to restrain or prohibit the transactions contemplated by Closing Escrow Agent of the certificates for the Initial Shares and the Warrants in accordance with this Agreement; (b) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with before the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred Closing Date and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or the Chief Financial Officer, to Officer of the effect set forth in subparagraphs (a), (b) and Company confirming such matters; (c) of this Section 7; (e) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate Memorandum of Incorporation Continuance and ByBye-Laws of the Company as in effect on the Closing Date, and (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyerhereby; (fd) The Collateral Escrow Agent shall have executed and delivered to the Company Escrow Agreement in the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyerform attached hereto as Annex III; (ge) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and Receipt by the Buyer shall have received satisfactory evidence on the Closing Date of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On the Closing Date, the Buyer shall have received an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇ LLP▇▇▇▇▇▇, counsel for the Company, dated the Closing Date, addressed to the Buyereffect set forth in Annex V attached hereto, in (ii) an opinion of ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq., the form attached as Annex VII and otherwise in formGeneral Counsel of the Company, scope and substance reasonably satisfactory dated the Closing Date, to the Buyer and effect set forth in Annex VI attached hereto, (iii) an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman ▇▇▇▇ & ▇▇▇▇▇▇▇, LLP, intellectual property Bermuda counsel for to the Company, dated the Closing Date, addressed to the Buyer, effect set forth in the form Annex VII attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited hereto and (iiiv) a general moratorium on commercial banking activities in the State an opinion of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered LLP, Arizona counsel to the Buyers and Company, dated the Company a Lockup Agreement Closing Date, to the effect set forth in Annex VIII attached hereto; and (f) On the form attached as Annex IXClosing Date, no legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by this Agreement.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant is conditioned upon satisfaction of the following conditions precedent Shares on or before the Closing Date (any or all of which may be waived is conditioned upon: a. Acceptance by the Company of this Agreement, as indicated by execution of this Agreement and the delivery to the Buyer of a duly executed Board resolution authorizing and approving the transaction contemplated herein; b. Delivery by the Company to the Buyer of the certificate for the Shares in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks to restrain or prohibit the transactions contemplated by accordance with this Agreement; (b) c. The representations accuracy in all material respects on the Closing Date of the representations, covenants and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date)Date, and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date of all covenants and agreements of the Company required to be performed on or before the Closing Date; (c) No event which, if the Note were outstanding, (1) would constitute an Event of Default or which, with the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, duly executed by its Chief Executive Officer or Chief Financial Officer, to the effect set forth in subparagraphs (a), (b) and (c) of this Section 7; (e) The Company shall have delivered to the Buyer a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (f) The Collateral Agent shall have executed and delivered to the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (g) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) d. On the Closing Date, the Buyer shall have has received an opinion of Sichenzia counsel for the Company, dated the Closing Date in form, scope and substance reasonably satisfactory to the Buyer; e. On the Closing Date, the Buyer has received a fairness opinion from the Accountant for the Company, dated the Closing Date in form, scope and substance reasonably satisfactory to the Buyer; f. No statute, rule, regulation, executive order, decree, ruling or injunction shall be enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction which prohibits or adversely effects any of the transactions contemplated by this Agreement, and no proceeding or investigation shall have been commenced or threatened which may have the effect of prohibiting or adversely effecting any of the transactions contemplated by this Agreement; and g. Deliver by the Company to the Buyer of signed resignations from the Board of Directors for ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇, and ▇▇▇ ▇▇▇▇▇▇, along with the appointment to the Board of ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer; and (o) On the Closing Date, (i) trading in securities on the New York Stock Exchange, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authoritiesChairman. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered to the Buyers and the Company a Lockup Agreement in the form attached as Annex IX.

Conditions to The Buyer’s Obligation to Purchase. The Company understands that the Buyer’s 's obligation to purchase the Note and acquire the Warrant Warrants on the Closing Date is conditioned upon the satisfaction of the following conditions precedent on or before the Closing Date (any or all of which may be waived by the Buyer in its sole discretion): (a) No legal action, suit or proceeding shall be pending or threatened which seeks Delivery by the Company to restrain or prohibit the transactions contemplated by Escrow Agent of the certificates for the Note and the Warrants in accordance with this Agreement; (b) The accuracy on the Closing Date of the representations and warranties of the Company contained in this Agreement shall have been true and correct on the date of this Agreement and shall be true and correct as if made on the Closing Date as if given on and as of the Closing Date (except for representations given as of a specific date, which representations shall be true and correct as of such date), and on or before the Closing Date the Company shall have performed all covenants and agreements of the Company contained herein or in any of the other Transaction Documents required to be performed performance by the Company on or before the Closing Date; (c) No event which, if Date of all covenants and agreements of the Note were outstanding, (1) would constitute an Event of Default Company required to be performed on or which, with before the giving of notice or the passage of time, or both, would constitute an Event of Default shall have occurred Closing Date and be continuing or (2) would constitute a Repurchase Event or which, with the giving of notice or the passage of time, or both, would constitute a Repurchase Event shall have occurred and be continuing; (d) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, duly executed by its of the Chief Executive Officer or the Chief Financial Officer, to Officer of the effect set forth in subparagraphs (a), (b) Company confirming such matters and such other matters as the Buyer may reasonably request; (c) of this Section 7; (e) The Company shall have delivered to receipt by the Buyer of a certificate, dated the Closing Date, of the Secretary of the Company certifying (1) the Certificate Articles of Incorporation and By-Laws of the Company as in effect on the Closing Date, (2) all resolutions of the Board of Directors (and committees thereof) of the Company relating to this Agreement and the other Transaction Documents and the transactions contemplated hereby and thereby and (3) such other matters as reasonably requested by the Buyer; (fd) The Collateral Transfer Agent shall have executed acknowledged receipt of the Transfer Agent Instruction in the form attached hereto as ANNEX V and delivered shall not have objected or declined to follow the Company the Pledge and Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyerinstructions contained therein; (ge) The Buyer shall have received from the Company customary, current search reports of the relevant Uniform Commercial Code filing offices, the content of which reports shall be satisfactory to the Buyer; (h) All filings of financing statements necessary or appropriate under the Uniform Commercial Code in connection with the Pledge and Security Agreement shall have been made, and Receipt by the Buyer shall have received satisfactory evidence of such filings; (i) The Collateral Agent shall have executed and delivered to the Company the Patent and Trademark Security Agreement and a copy thereof duly executed and delivered by the Company, shall have been furnished to the Buyer; (j) The Buyer shall have received from the Company customary, current search reports of the PTO, the content of which reports shall be satisfactory to the Buyer; (k) All filings with the PTO necessary or appropriate in connection with the Patent and Trademark Security Agreement shall have been made, and the Buyer shall have received satisfactory evidence of such filings; (l) The Lockbox Agent shall have executed and delivered to the Company the Lockbox Agreement and a copy thereof duly executed and delivered by the Company shall have been furnished to the Buyer; (m) The Conversion Shares and the Warrant Shares shall have been approved for listing, subject only to official notice of issuance, by the AMEX and the Buyer shall have received written evidence of such approval by the AMEX; (n) On on the Closing Date, the Buyer shall have received Date of an opinion of Sichenzia ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇Weil, Gotshal & ▇▇▇▇▇▇ LLP, counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VII and otherwise in form, scope and substance reasonably satisfactory to the Buyer and an opinion of ▇▇▇▇▇▇▇ Drangel Bazerman & ▇▇▇▇▇, LLP, intellectual property counsel for the Company, dated the Closing Date, addressed to the Buyer, in the form attached as Annex VIII and otherwise in form, scope and substance reasonably satisfactory to the Buyer, to the effect set forth in ANNEX VI attached hereto; and (of) On Receipt by the Buyer on the Closing Date of an opinion of the Company's General Counsel, dated the Closing Date, (i) trading in securities on the New York Stock Exchangeform, Inc., the AMEX, Nasdaq or the Nasdaq Capital Market shall not have been suspended or materially limited scope and (ii) a general moratorium on commercial banking activities in the State of New York shall not have been declared by either federal or state authorities. (p) ▇▇▇▇ ▇▇▇▇▇▇▇ shall have executed and delivered substance reasonably satisfactory to the Buyers and Buyer, to the Company a Lockup Agreement effect set forth in the form ANNEX VII attached as Annex IXhereto.