Common use of Second Closing Clause in Contracts

Second Closing. The second closing of the sale and purchase of the shares of Series F Preferred Stock under this Agreement (the “Second Closing”) shall take place at the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of the Corporation (the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior to the proposed date of the Second Closing, which Milestone Notice shall certify that the Board of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock at the Second Closing are subject to the following conditions: (i) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as set forth above; (ii) the representations and warranties of the Corporation set forth in Exhibit G shall be true and correct in all material respects as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes hereof. At the Second Closing:

Second Closing. The second closing “Second Closing Date” shall mean the date of the issuance and sale and purchase of 1,780,149 of the shares of Series F Preferred Stock under this Agreement Shares (the “Second Closing Shares”, subject to appropriate adjustments for any stock dividend, stock split, stock combination, rights offerings, reclassification or similar transaction that proportionately decreases or increases the Common Stock) by the Company to Buyer (the “Second Closing”), which shall occur on or before the date that is fourteen (14) shall take place calendar days after the First Effectiveness Date (as defined in this Agreement), at such location as may be agreed to by the offices Company and Buyer (including via exchange of Fxxxx Hxxx llpelectronic signatures), Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a subject to the satisfaction (or written notice waiver) of the Corporation conditions thereto set forth in Sections 5 and Section 6 of this Agreement, and the Additional Second Closing Conditions (as defined in this Agreement). On the Second Closing Date, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company, the Second Closing Shares, as further provided in this Agreement. On the Second Closing Date: (i) the Buyer shall pay the purchase price of $1,050,287.91 (the “Milestone NoticeSecond Purchase Price”) delivered to each for the Second Closing Shares, by wire transfer of the Purchasers at least five (5) business days prior immediately available funds to the proposed date of Company, in accordance with the Company’s written wiring instructions attached hereto as Exhibit E, and (ii) the Company shall issue the Second ClosingClosing Shares to the Buyer without any restrictive legend on the Second Closing Date. Further, which Milestone Notice the Buyer shall certify that withhold $20,000.00 from the Board of Directors of Second Purchase Price to cover the Corporation has made Buyer’s legal fees in connection with the reasonable determination in good faith that the Milestones have been achieved transactions contemplated by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achievedthis Agreement. Notwithstanding the foregoing, if the Buyer would beneficially own in excess of the Beneficial Ownership Limitation as a result of the issuance of the Second Closing Shares as determined in accordance with Section 13(d) of the 1934 Act, then in lieu of receiving the portion of the Second Closing Shares in excess of the Beneficial Ownership Limitation, such Buyer shall instead receive pre-funded common stock purchase warrants in the form attached hereto as Exhibit D, to purchase the number of Second Closing Shares in excess of the Beneficial Ownership Limitation (the “Second Closing Pre-Funded Warrants”). The “Additional Second Closing Conditions” shall mean (i) the Company has not breached any covenant, agreement, or other term or condition contained in the Agreement, Registration Rights Agreement (as defined in this Agreement), or any document, agreement, or instrument contemplated thereby, (ii) the Common Stock is listed for trading on the Nasdaq Capital Market (“Nasdaq CM”) and is not suspended or halted from trading, (iii) the Company is in compliance with all of the listing standards of Nasdaq CM, (iv) the initial Registration Statement (as defined in the Registration Rights Agreement) (a) shall be declared effective by the obligation to consummate SEC on or before the date that is sixty (60) calendar days from the date of this Agreement and shall still be effective as of the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such dateDate, and (b) only one (1) shall include all of the First Closing Shares, Common Stock underlying the First Closing Pre-Funded Warrants, Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunderShares, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Common Stock at underlying the Second Closing are Pre-Funded Warrants for the Buyer’s resale at prevailing market prices, and (v) Nasdaq official closing price of the Common Stock must be at least $1.20 per share (subject to appropriate adjustments for any stock dividend, stock split, stock combination, rights offerings, reclassification or similar transaction that proportionately decreases or increases the following conditions: (iCommon Stock) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as set forth above; (ii) the representations and warranties on each of the Corporation set forth in Exhibit G shall be true and correct in all material respects as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following Trading Days (as defined in this Agreement) prior to the Milestone Date indicating Second Closing Date. “Trading Day” shall mean any day that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred StockCommon Stock are listed for trading on the Nasdaq CM. Each Purchaser who delivers such notice within such period and exercises such option “First Effectiveness Date” shall mean the first date that the initial Registration Statement (as defined in full the Registration Rights Agreement (a “Participating Purchaser”as defined in this Agreement)) shall have is declared effective by the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes hereof. At the Second Closing:SEC.

Second Closing. The second closing Second Closing shall occur at 10:00am (New York City time) on third (3rd) Business Day following the date on which all of the sale conditions set forth in Section 2.3 shall have been satisfied or, if applicable, waived by the party entitled to the benefit thereof, or at such other time and purchase of location as the shares of Series F Preferred Stock under this Agreement parties shall mutually agree in writing; provided, that in the event that the parties do not hold the Second Closing on or prior to the date that is thirty (30) days after the First Closing Date (the “Outside Date”), the parties’ rights with regard to the Second Closing”) shall take place at Closing and the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice possible issuance of the Corporation (Second Closing Shares by the “Milestone Notice”) delivered Company to each of the Purchasers at least five (5) business days prior the Second Closing shall terminate and be of no further force or effect. The parties each agree to use their reasonable best efforts to cause the proposed date satisfaction of all the conditions required for the Second Closing to occur, and to consummate the Second Closing, which Milestone Notice shall certify as promptly as possible after the First Closing, and in any case within fourteen (14) days after the First Closing Date; provided, that the Board of Directors of foregoing covenant shall not change the Corporation has made Outside Date. At the reasonable determination in good faith that Second Closing, upon the Milestones have been achieved by terms and subject to the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of conditions set forth herein, the achievement of the MilestonesCompany agrees to sell, and the Corporation Purchasers, severally and not jointly, agree to purchase, the Second Closing Shares in exchange for payment by the Purchasers, severally and not jointly, of an aggregate amount equal to the Second Closing Purchase Price. Each Purchaser’s applicable Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company or its designee. At the Second Closing, the Company shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy its respective pro rata share of the statements made in Second Closing Shares (based on such Purchaser’s applicable Subscription Amount relative to the Milestone Notice. Within five aggregate Second Closing Purchase Price) (5) business days following receipt of such Purchaser’s “Applicable Second Closing Shares”), and the Milestone Notice, Company and each Purchaser shall make a reasonable, good faith determination as to whether or not deliver the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock at the Second Closing are subject to the following conditions: (i) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as set forth above; (ii) the representations and warranties of the Corporation other items set forth in Exhibit G shall be true and correct in all material respects as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place Section 2.2 deliverable at the Second Closing. Settlement of the Second Closing Shares shall occur via “Delivery Versus Payment” (“DVP”) (i.e., on the Second Closing Date, the Company shall issue the Applicable Second Closing Shares registered in each Purchaser’s name and address and released by the Transfer Agent directly to the account(s) identified by each Purchaser, and only Participating Purchasers payment therefor shall be deemed made by each Purchaser (by wire transfer to be Purchaser(s) at such the Company)). All Second Closing for Shares shall be delivered to the Purchasers hereunder free and clear of all purposes hereof. At the Second Closing:Liens, other than restrictions on transferability arising under applicable federal securities laws.

Second Closing. The second closing Upon the effectiveness of the sale and purchase of registration statement registering the shares of Series F Preferred Common Stock under this Agreement issuable upon conversion of the Convertible Debentures and those issuable upon exercise of the Warrants (the “Second ClosingRegistration Statement”) subject to the terms and conditions set forth herein, the Company agrees to sell, and the Investors, severally and not jointly, agree to purchase, in the aggregate, US$200,000 of Convertible Debentures, convertible into shares of Common Stock of the Company. Each Investor shall take place deliver to the Escrow Agent immediately available funds in their proportionate amount of the aggregate Purchase Price, as set forth on the signature pages hereto, and the Company shall deliver certificates evidencing a Stated Value equal to said Purchase Price to the Escrow Agent, in each case to be held by the Escrow Agent pursuant to the Escrow Agreement. Upon satisfaction of the conditions set forth in Section 1.1(c), the second Closing shall occur at the offices of Fxxxx Hxxx llpthe Escrow Agent, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of at which time the Corporation Escrow Agent (x) shall release the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior Convertible Debentures to the proposed date of the Second Closing, which Milestone Notice shall certify that the Board of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such dateInvestors, and (by) only one shall release such Purchase Price (1) Second Closing may occur under this after all fees have been paid as set forth in the Escrow Agreement), pursuant to the terms of the Escrow Agreement. Upon any such termination Each Closing is subject to the satisfaction or upon waiver by the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations be benefited thereby of the Purchasers to purchase the shares of Series F Preferred Stock at the Second Closing are subject to the following conditions: (i) such Purchaser shall have made a reasonableAt the first Closing, good faith determination that acceptance and execution by the Milestones have been achieved Company and by the Investors, of this Agreement, the Registration Rights Agreement, attached as Exhibit C hereto and the Escrow Agreement; delivery into escrow by each Investor of immediately available funds in the amount of the Purchase Price as indicated and set forth aboveon the signature page hereto; (ii) the all representations and warranties of the Corporation set forth in Exhibit G Investors contained herein shall be remain true and correct in all material respects as of the date each Closing Date; all representations and warranties of the Second ClosingCompany contained herein shall remain true and correct as of each Closing Date; (iii) the Corporation Company shall have performed obtained all permits and complied in all material respects with all covenants qualifications required by any state for the offer and agreements contained in this Agreementsale of the Convertible Debentures and Warrants, or shall have the Related Agreements availability of exemptions therefrom; the sale and issuance of the Convertible Debentures and the Certificate of Incorporation to be performed or complied with at or prior Warrants hereunder, and the proposed issuance by the Company to the date Investors of the Second Closing; Common Stock underlying the Convertible Debentures and (iv) the Corporation Warrants upon the conversion or exercise thereof shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement legally permitted by all laws and regulations to which the Corporation is a party (except for Investors and the Company are subject and there shall be no ruling, judgment or writ of any violation, breach or default relating court prohibiting the transactions contemplated by this Agreement; delivery of the applicable original fully executed certificates of the Convertible Debentures and the Warrants to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition Escrow Agent; delivery of the Corporation. If the Corporation has not sent the Milestone Notice on or prior opinion of Xxxxxx Xxxxxx, LLP, counsel to the Milestone DateCompany, then in the Corporation shall deliver on form of Exhibit D hereto; at the Milestone Date a written notice First Closing, delivery to each Purchaser, which notice shall identify which the Escrow Agent of the Milestones, if any, Irrevocable Instructions to Transfer Agent in the Corporation has achieved form attached hereto as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser Exhibit E hereto; there shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance been no Material Adverse Effect with the terms hereof by delivering respect to the Corporation and the other Purchasers a written notice on or before Company since the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place hereof; at the Second Closing, the Registration Statement registering the Common Stock underlying the securities (400% of the shares underlying the Convertible Debentures and only Participating Purchasers 100% of the shares underlying the Warrants) will be registered for resale as soon as possible after the Closing Date and shall have been declared effective under the Securities Act by the SEC and shall have remained effective at all times, not subject to any actual or threatened stop order or subject to any actual or threatened suspension at any time prior to such Closing Date; at the First Closing, up to $1,000,000 worth of shares of Common Stock (the “Pledged Shares”) shall be deemed placed in escrow with the Investor’s representative pursuant to the Stock Pledge Agreement attached as Exhibit F, hereto. The obligations of the Company set forth below under “Registration Rights” will be Purchaser(ssecured by a pledge of such shares, which Pledged Shares shall have been held for at least two years by one or more existing shareholders of the Company. Such pledgors shall waive all rights of subrogation against the Company in respect of the pledge and such shares shall be Rule 144(k) eligible. If a registration statement covering the shares issuable upon conversion of the Convertible Debentures and exercise of the warrants has not been declared effective within 120 days following the Closing Date, the Investor shall have the right, but not the obligation, to acquire the pledged shares in partial satisfaction of the Company’s obligations under the Convertible Debentures; at such Second Closing for all purposes hereofClosing, the Company shall be listed on the OTC Bulletin Board, NASDAQ, New York Stock Exchange or American Stock Exchange; and, Prior to the First Closing, the Company shall hire an I.R. firm, acceptable to the Investors, to increase public awareness. At Optional Conversion. Investors shall have the Second Closingfollowing conversion rights:

Second Closing. The second closing Upon and subject to the terms and conditions of this Agreement, at the sale and purchase of the shares of Series F Preferred Stock under this Agreement (the “Second Closing”, Sellers shall sell, transfer, assign and deliver to Purchaser, and Purchaser shall purchase, acquire and accept from Sellers, all of Sellers' right, title and interest in and to all the Initial Assets identified in Schedule 2.1(b)(ii) shall take place at that meet the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of the Corporation (the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior to the proposed date Conditions Precedent as of the Second Closing, which Milestone Notice shall certify that the Board free and clear of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achievedall Liens other than Permitted Liens. Notwithstanding the foregoing, (a) if, at the obligation to consummate time of the Second Closing may be terminated by the Purchasers at Closing, there is an Open Title Condition with respect to any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(bInitial Assets identified in Schedule 2.1(b)(ii) and this Agreement shall otherwise remain in full force and effect. The respective obligations such failure would have the effect of reducing the Purchasers to purchase the shares of Series F Preferred Stock TCF Product payable for such Initial Assets at the Second Closing are subject below the Second Closing Amount, but all the Conditions Precedent to the following conditions: Second Closing other than the Title Condition are met with respect to such Initial Assets, then (i) such Sellers shall sell, transfer, assign and deliver to Purchaser, and Purchaser shall have made a reasonablepurchase, good faith determination that acquire and accept from Sellers, all of Sellers' right, title and interest in and to such Initial Assets identified in Schedule 2.1(b)(ii) with respect to which the Milestones have been achieved as set forth above; Title Condition is satisfied, and (ii) such Open Title Assets will become Managed Assets pursuant to the representations and warranties of Management Agreement so that the Corporation set forth in Exhibit G shall be true and correct in all material respects as of the date of aggregate TCF Product for the Second Closing; (iii) the Corporation shall have performed and complied in all material respects , with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation respect to such Initial Assets to be performed or complied with at or prior to the date of the Second Closing; transferred and (iv) the Corporation such Managed Assets, shall be not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at less than the Second Closing in accordance with Amount. For the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares avoidance of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”)doubt, then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, Schedule 2.1(b)(ii) shall identify and only Participating Purchasers Sellers shall be deemed deliver to Purchaser, Initial Assets and deliver to Purchaser Managed Assets to be Purchaser(s) at such managed under the Management Agreement that generate, in the aggregate, TCF Product in amount not less than the Second Closing for all purposes hereof. At the Second Closing:Amount.

Second Closing. The second closing completion of the purchase and sale and purchase of the shares of Series F Preferred Stock under this Agreement Additional Shares and Additional Warrants (the “Second Closing”) shall take place occur at the offices of Fxxxx Hxxx llpPillsbury Winthrop LLP, Seaport World Trade Center West, 100 0000 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx Xxxx Xxxx, Xxxxxxxxxx 00000, at 8:00 A.M., San Francisco time, on a the third business day following the date specified in a written notice on which the last to be fulfilled or waived of the Corporation conditions set forth in Section 5 and Section 6 pertaining to the Second Closing (other than those conditions that by their nature can only be fulfilled at the “Milestone Notice”Second Closing) delivered to shall have been fulfilled or waived (by each of the Purchasers at least five parties hereto), or such other place and time to be specified by the Company, and of which the Investors will be notified not less than two (52) business days prior in advance by the Company. Subject to the proposed date satisfaction or waiver of the Second Closing, which Milestone Notice shall certify that the Board of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock at the Second Closing are subject to the following conditions: (i) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as set forth above; (ii) the representations and warranties of the Corporation conditions set forth in Exhibit G shall be true Section 5 and correct in all material respects as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement6 hereof, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, the Investors identified on the Schedule of Investors as participants in the Second Closing (the “Second Closing Investors”) shall purchase the number of Additional Shares and only Participating Purchasers Additional Warrants set forth opposite such Investors’ names on the Schedule of Investors. Funds shall be deemed released to the Company from the Escrow on behalf of the Second Closing Investors as payment for the Additional Shares and Additional Warrants. Upon receipt of payment therefor, the Company shall deliver to each Investor one or more stock certificates representing the number of Additional Shares, and an Additional Warrant representing the number of Warrant Shares, set forth opposite such Investor’s name on the Schedule of Investors, each such certificate and Additional Warrant to be Purchaser(s) at registered in the name of the Investor or, if so indicated on the Stock Certificate and Warrant Questionnaire, in the name of a nominee designated by such Investor. The Initial Closing and the Second Closing for all purposes hereof. At are collectively referred to as the Second “Closing:.”

Second Closing. The second closing On the Second Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, such Purchaser’s Second Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser (an aggregate of $1,000,000.00) in principal amount of the sale and purchase of the shares of Series F Preferred Stock under this Agreement (the “Second Closing”) shall take place at the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of the Corporation (the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior to the proposed date of Debentures. At the Second Closing, which Milestone Notice each Purchaser shall certify that deliver to the Board of Directors of Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Second Closing Subscription Amount as set forth on the Corporation has made the reasonable determination in good faith that the Milestones have been achieved signature page hereto executed by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestonessuch Purchaser, and the Corporation Company shall deliver to each Purchaser such additional documentation its respective Debenture and a Warrant, as such Purchaser may reasonably request in order determined pursuant to confirm Section 2.2(a), and the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, Company and each Purchaser shall make deliver the other items set forth in Section 2.2 deliverable at the Second Closing. Subject to the terms and conditions herein, upon the determination by the Company for a reasonableSecond Closing at any time on or before the one year anniversary of the First Closing Date, good faith determination but not earlier than the 6 month anniversary of the First Closing Date, the Company shall deliver written notice to each Purchaser of the Second Closing (“Second Closing Notice”). Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3 for the Second Closing, the Second Closing shall occur at the offices of WS or such other location as to whether or not the Milestones have been achievedparties shall mutually agree within 15 Trading Days from the date of the Second Closing Notice. Notwithstanding the foregoing, (a) at the obligation to consummate sole option of the Purchasers, the Second Closing may be terminated by the Purchasers occur at any time after the Milestone First Closing Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of within 15 Trading Day notice by the Purchasers to purchase the shares Company of Series F Preferred Stock at their intent to conduct the Second Closing, irrespective of the Company meeting the requirements of the Second Closing are subject to Corporate Milestone, provided that in no event shall the following conditions: Second Closing occur (i) such Purchaser shall have made a reasonablelater than the 3 year anniversary of the First Closing Date, good faith determination that the Milestones have been achieved as set forth above; (ii) during a Change of Control Redemption Period (as defined in the representations and warranties of the Corporation set forth in Exhibit G shall be true and correct in all material respects as of the date of the Second Closing; Debentures) or (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to after the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestonesdate, if any, the Corporation has achieved as on which all of the Milestone Date, as reasonably determined then outstanding Debentures are prepaid in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing full in accordance with the terms hereof by delivering to Debentures or otherwise with the Corporation and written consent of the other Purchasers a written notice on or before Required Holders (as defined in the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”Debenture), then in each other Participating Purchaser may, at its option and case without the prior written consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes hereof. At the Second Closing:Company.

Second Closing. The Subject to the terms and conditions of this Agreement, after the Closing and at any time on or prior to the date of the filing by the Company of the initial registration statement required to be filed by it under the Registration Rights Agreement, at a second closing of the sale and purchase of the shares of Series F Preferred Stock under this Agreement (the “Second Closing”) shall take place at ), the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of Company may issue and sell to one or more individuals and entities approved by the Corporation (the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior to the proposed date of the Second Closing, which Milestone Notice shall certify that the Company’s Board of Directors (each an “Additional Buyer” and collectively, the “Additional Buyers”) an aggregate principal amount of Notes equal to $500,000 at the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence Purchase Price of the achievement $0.9300 for each $1.00 of the Milestonesprincipal amount of Notes and Warrants to acquire up to Fifty Three Million, Eight Hundred and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five Seventy Nine Thousand, Three Hundred and Ten (553,879,310) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock Common Stock. All sales made at the Second Closing are subject to shall be made on the following conditions: (i) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as terms and conditions set forth above; (ii) in this Agreement. At the Second Closing the representations and warranties of the Corporation Company set forth in Exhibit G Section 3 hereof shall be true speak as of the Closing Date (and correct in all material respects the Company shall have no obligation to update the representations and warranties and the Disclosure Schedules to the date of the Second Closing), and the representations and warranties of the Additional Buyers shall speak as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes hereof. At the Second Closing:, (i) each Additional Buyer and the Company shall execute a counterpart signature page hereto and to the Registration Rights Agreement, (ii) the Company shall cause the Schedule of Buyers hereto to be updated to reflect the purchases made by the Additional Buyers, (iii) each Additional Buyer shall become a “Buyer” hereunder and the Notes and Warrants purchased by such Additional Buyer shall be deemed “Notes” and “Warrants,” respectively, for purposes of this Agreement and the other Transaction Documents, and (iv) subject to the terms and conditions hereof, the Company will deliver to each of the Additional Buyers purchasing Notes and Warrants at the Second Closing the applicable Notes and Warrants registered in the name of such Additional Buyer, against payment to the Company of the Purchase Price therefor in cash by wire transfer, check or other method acceptable to the Company.

Second Closing. On the Second Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of 3,000 Preferred Shares with an aggregate Stated Value for each Purchaser equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, as determined pursuant to Section 2.2(a). The second closing Second Closing shall occur on, or as soon as reasonably practicable following, and in any event within 5 Trading Days of, the date on which the Registration Statement registering all of the sale and purchase of Registrable Securities (as defined in the shares of Series F Preferred Stock under this Agreement Registration Rights Agreement) is declared effective by the Commission (the “Second Closing”) ). On the Second Closing Date, each Purchaser shall take place at the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of the Corporation (the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior deliver to the proposed date of Company, via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount for the Second Closing, which Milestone Notice shall certify that Closing as set forth on the Board of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved signature page hereto executed by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestonessuch Purchaser, and the Corporation Company shall deliver to each Purchaser such additional documentation its respective Preferred Shares and Warrants, as such Purchaser may reasonably request in order determined pursuant to confirm Section 2.2(a), and the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, Company and each Purchaser shall make a reasonable, good faith determination as to whether or not deliver the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under other items set forth in Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock 2.2 deliverable at the Second Closing are subject Closing. In connection with the initial Registration Statement to be filed by the following conditions: (i) Company, when the Company reasonably expects that such Purchaser shall have made a reasonable, good faith determination that Registration Statement may become effective in the Milestones have been achieved as set forth above; (ii) the representations and warranties of the Corporation set forth in Exhibit G shall be true and correct in all material respects as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreementnear future, the Related Agreements and Company shall provide the Certificate of Incorporation to be performed or complied Purchasers with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice specifying the expected date of effectiveness, which shall not be less than 21 days following the delivery date of such notice to the Purchasers. upon receipt by the Company of notification (oral or written, whichever occurs earlier) from the Commission that such Registration Statement shall not be reviewed or shall not be subject to further review, the Company shall have promptly delivered written notice thereof to each Purchaser, which written notice (1) shall identify which be delivered to the Purchasers prior to the Company’s filing with the Commission of the Milestones, if any, the Corporation has achieved as a request of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing request for acceleration in accordance with Rule 461 promulgated under the terms hereof by delivering to Securities Act and (2) shall include the Corporation and proposed date of effectiveness of the other Purchasers a written notice on or before the date Registration Statement, which is five shall not be less than eight (5) business 8) days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares delivery date of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have to the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes hereof. At the Second Closing:Purchasers.

Second Closing. On the Second Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, a number of shares of Preferred Stock equal to such Purchaser’s Subscription Amount as to the Second Closing as set forth on the signature page hereto executed by such Purchaser divided by the Per Share Purchase Price. The second closing aggregate Subscription Amount of the sale Purchasers as to the Second Closing shall be $5,000,000, and purchase the aggregate Stated Value of the shares of Series F Preferred Stock under this Agreement (the “Second Closing”) shall take place issued at the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of the Corporation (the “Milestone Notice”) delivered Second Closing shall be equal to each of the Purchasers at least five (5) business days prior $5,882,352.94. . Each Purchaser shall deliver to the proposed date of Company, via wire transfer, immediately available funds equal to its Subscription Amount as to the Second Closing, which Milestone Notice shall certify that the Board of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation Company shall deliver to each Purchaser such additional documentation its respective shares of Preferred Stock, as such Purchaser may reasonably request in order determined pursuant to confirm Section 2.2(a), and the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, Company and each Purchaser shall make a reasonabledeliver the other items set forth in Section 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, good faith determination as to whether or not the Milestones have been achieved. Notwithstanding the foregoing, (a) the obligation to consummate the Second Closing may be terminated shall take place remotely by electronic transfer of the Second Closing documentation. The Company covenants that, if the Purchaser delivers a Notice of Conversion (as defined in the Certificate of Determination) to convert any shares of Preferred Stock between the delivery to the Company of the Second Closing Acceleration Notice and the Second Closing Date, the Company shall deliver Conversion Shares to the Purchaser on the Second Closing Date in connection with such Notice of Conversion. For the avoidance of doubt, the Company’s obligation to issue and sell to the Purchasers, and the Purchasers at any time after the Milestone Date if the Corporation has not achieved the Milestones on or prior obligation to such datepurchase, and (b) only one (1) Second Closing may occur under this Agreement. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock at the Second Closing are is irrevocable subject only to the following conditions: satisfaction (ior waiver) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as set forth above; (ii) the representations and warranties of the Corporation conditions set forth in Exhibit G shall be true Section 2.3 of this Agreement as provided therein and correct is not subject to any other contingencies or conditions. For the further avoidance of doubt, the Purchasers subscribing for, in all material respects as the aggregate, at least 51% of the Subscription Amounts hereunder, may deliver a Second Closing Acceleration Notice at any time after the date of the Second Closing; (iii) the Corporation shall have performed this Agreement in their sole and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements and the Certificate of Incorporation to be performed or complied with at or prior to the date of the Second Closing; and (iv) the Corporation shall not have violated or breached, or be in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating to the Sponsored Research Agreement or the related License Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering to the Corporation and the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that such Purchaser nonetheless wishes to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale of shares of Series F Preferred Stock pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes hereof. At the Second Closing:absolute discretion.

Second Closing. The second closing Subject to the terms and conditions hereof, in the event that the Purchase Price paid for the Units does not exceed the Maximum Offering Amount, the Company agrees to issue and sell to the Purchasers who execute this agreement and are listed on Exhibit B hereto and, in consideration of and in express reliance upon the sale representations, warranties, covenants, terms and conditions of this Agreement, the Purchasers, severally but not jointly, agree to purchase from the Company on such Second Closing Date (as defined below), up to such number of Units for an aggregate purchase price that is the shares of Series F Preferred Stock under this Agreement difference between the gross proceeds from the First Closing and the Maximum Offering Amount (the “Second Closing”) shall take place at the offices of Fxxxx Hxxx llp, Seaport World Trade Center West, 100 Xxxxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, on a date specified in a written notice of the Corporation (the “Milestone Notice”) delivered to each of the Purchasers at least five (5) business days prior to the proposed date of ). The First Closing and the Second Closing are each referred to in this Agreement as a “Closing, which Milestone Notice shall certify that the Board of Directors of the Corporation has made the reasonable determination in good faith that the Milestones have been achieved by the Corporation. The Milestone Notice shall be accompanied by reasonable evidence of the achievement of the Milestones, and the Corporation shall deliver to each Purchaser such additional documentation as such Purchaser may reasonably request in order to confirm the accuracy of the statements made in the Milestone Notice. Within five (5) business days following receipt of the Milestone Notice, each Purchaser shall make a reasonable, good faith determination as to whether or not the Milestones have been achieved. .” Notwithstanding the foregoing, (a) the obligation to consummate aggregate number of Units sold in both the First Closing and the Second Closing may be terminated by the Purchasers at any time after the Milestone Date if the Corporation has shall not achieved the Milestones on or prior to such date, and (b) only one (1) Second Closing may occur under this Agreementexceed 7,887,500. Upon any such termination or upon the occurrence of any Second Closing hereunder, no party to this Agreement shall have any further liability under Section 1.2(b) and this Agreement shall otherwise remain in full force and effect. The respective obligations of the Purchasers to purchase the shares of Series F Preferred Stock at the Second Closing are subject Subject to the following conditions: (i) such Purchaser shall have made a reasonable, good faith determination that the Milestones have been achieved as terms and conditions set forth above; (ii) the representations and warranties of the Corporation set forth in Exhibit G shall be true and correct in all material respects as of the date of the Second Closing; (iii) the Corporation shall have performed and complied in all material respects with all covenants and agreements contained in this Agreement, the Related Agreements date and the Certificate of Incorporation to be performed or complied with at or prior to the date time of the Second ClosingClosing (the “Second Closing Date,” and together with the First Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 1:00 p.m., New York City Time, on the date mutually agreed to by the Company and the Purchasers executing a signature page hereto; provided, however, that such date is not expected to be later than June 30, 2008 and (iv) that all of the Corporation shall not have violated or breached, or be conditions set forth in default under, any provision of any material note, bond, debenture, evidence of indebtedness, indenture, mortgage, lease, contract, purchase order or other instrument, document or agreement to which the Corporation is a party (except for any violation, breach or default relating Article IV hereof and applicable to the Sponsored Research Agreement Second Closing shall have been fulfilled or waived in accordance herewith. Subject to the related License terms and conditions of this Agreement, each dated November 8, 2004, between the Corporation and Kos), the violation or breach of which, or default under which, could reasonably be expected to have a material and adverse effect on the business, assets, operations, results of operations or financial condition of the Corporation. If the Corporation has not sent the Milestone Notice on or prior to the Milestone Date, then the Corporation shall deliver on the Milestone Date a written notice to each Purchaser, which notice shall identify which of the Milestones, if any, the Corporation has achieved as of the Milestone Date, as reasonably determined in good faith by the Board of Directors of the Corporation. Each Purchaser shall have the option to purchase, without the consent of the other Purchasers, all or a portion of such Purchaser’s respective shares of Series F Preferred Stock at the Second Closing in accordance with the terms hereof by delivering Company shall deliver or cause to be delivered to each Purchaser (x) a certificate for the Corporation and number of Preferred Shares set forth opposite the other Purchasers a written notice on or before the date which is five (5) business days following the Milestone Date indicating that name of such Purchaser nonetheless wishes to be listed on Exhibit B hereto, (y) its Warrants to purchase such shares of Series F Preferred Stock. Each Purchaser who delivers such notice within such period and exercises such option in full (a “Participating Purchaser”) shall have the right of over-allotment such that if any other Purchaser fails to exercise its option in full pursuant to this paragraph (a “Nonparticipating Purchaser”), then each other Participating Purchaser may, at its option and without the consent of such Nonparticipating Purchaser, purchase all or a portion of the shares that such Nonparticipating Purchaser failed to purchase on a pro rata basis, within five (5) days from the date such Nonparticipating Purchaser fails to exercise its option hereunder in whole or in part. Any purchase and sale number of shares of Series F Preferred Common Stock as is set forth opposite the name of such Purchaser on Exhibit B to be attached hereto and (z) any other documents required to be delivered pursuant to this paragraph shall take place at the Second Closing, and only Participating Purchasers shall be deemed to be Purchaser(s) at such Second Closing for all purposes Article IV hereof. At the Second Closing:, each Purchaser shall deliver its Purchase Price by wire transfer to the escrow account pursuant to the Escrow General Agreement (as hereafter defined).