Common use of Second Tranche Clause in Contracts

Second Tranche. At the Company's option (which must be in the form of written notice to each of the Investors at least five Business Days prior to the Closing of the Second Tranche setting forth the dollar amount which shall be a minimum of $1,000,000 and a maximum of $3,000,000) the Company will sell and the Investors will buy, in reliance upon the representations and warranties contained in this Agreement, and upon the terms and satisfaction of each of the conditions set forth below, that number of Secondary Shares derived from dividing the dollar amount set forth in the Company's option notice by the Issuance Price (pro rata amongst the Investors based upon each Investor's First Tranche Purchase Price), after the earlier to occur of (y) 165 calendar days after the Subscription Date, and (z) two Business Days after the expiration of the second Reset Period for the Initial Shares, upon the satisfaction of each of the following conditions (the Company must exercise this option within 20 calendar days after the earlier of (y) and (z) herein): (A) Delivery into escrow by the Company of the original Secondary Shares, as more fully set forth in the Escrow Agreement attached hereto; (B) The Investors shall have received an opinion of counsel of the Company as set forth in Exhibit D annexed to this Agreement, dated on the Second Tranche Closing Date; (C) The Registration Statement (which includes at least 150% of the Initial Shares which have not yet been subject to a Reset Period, 100% of the Initial Shares that were subject to a Reset Period, 150% of the Secondary Shares, and 100% of the Warrant Shares) has previously become effective and remains effective for at least 40 calendar days and during the ten (10) Trading Days immediately prior to the Company's notice for the Second Tranche and the Second Tranche Closing Date, and (A) neither the Company nor any of the Investors shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have been addressed and the Investors are reasonably satisfied that the SEC no longer is considering or intends to take such action), and (B) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall exist; (D) The Company shall have obtained all permits and qualifications required by any state for the offer and sale of the Secondary Shares, or shall have the availability of exemptions therefrom. The sale and issuance of the Secondary Shares shall be legally permitted by all laws and regulations to which the Company is subject; (E) The Investors shall have received written certification that the representations and warranties of the Company contained in this Agreement and all Exhibits annexed hereto are true and correct in all material respects as of the Second Tranche Closing Date as though made at each such time (except for representations and warranties specifically made as of a particular date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Second Tranche Closing Date; (F) The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement, the Escrow Agreement, the Registration Rights Agreement and the Warrants, to be performed, satisfied or complied with by the Company at or prior to the Second Tranche Closing Date; (G) 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 that prohibits or directly and adversely affects any of the transactions contemplated by this Agreement or the Exhibits annexed hereto, and no proceeding shall have been commenced that may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or the Exhibits annexed hereto; (H) The trading of the Common Stock is not suspended by the SEC or the Principal Market, and the Common Stock shall not have been delisted from the OTC Bulletin BoardThe Company currently meets all applicable listing requirements of the Principal Market; (I) No change of control in the Company shall have occurred. Change of Control shall mean the occurrence of any of (a) an acquisition after the Subscription Date by a Person of in excess of 50% of the voting securities of the Company, (b) a replacement of more than one half of the board of directors in place as of the Subscription Date which is not approved by those individuals who are members of the board of directors on the Subscription Date in one or a series of transactions, (c) the merger of the Company with, or into another entity, consolidation or sale of all or substantially all of the assets of the Company in one or a series of related transactions, or (d) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in (a), (b) or (c) herein; (J) The average Bid Price for the 20 consecutive Trading Days immediately preceding the notice by the Company of its intention to proceed with the second tranche and the days immediately preceding the Second Tranche Closing Date shall be greater than $1.25; (K) The average daily trading volume for the Common Stock as reported by Bloomberg, LP for the 20 Trading Days immediately preceding the Company's notice for the Second Tranche and preceding the Closing for the second tranche shall be a minimum of 100,000; and (L) None of the Investor's, in the event of the Closing of the Secondary Shares would own or be deemed beneficially deemed to own, more than 9.99% of the outstanding shares of Common Stock.

Second Tranche. At any time on or after the Company's option (which must be in the form of written notice to each of the Investors at least five Business Days Closing Date but prior to the Closing earlier to occur of (x) January 23, 2023 and (y) the termination of all unused Note Purchase Commitments and payment in full of all Obligations (other than contingent indemnification obligations for which no claim has been asserted) under the Note Documents, upon prior written notice by the Issuer to the Administrative Agent, the Issuer may institute the Second Tranche in an aggregate amount not to exceed TWENTY-FIVE MILLION DOLLARS ($25,000,000); provided, that, (a) the Issuer shall have obtained commitments for the amount of the Second Tranche setting forth from existing Purchasers or other Persons reasonably acceptable to the dollar amount Administrative Agent, which Purchasers shall join in this Agreement pursuant to such agreements as are reasonably acceptable to the Administrative Agent; (b) any such institution of the Second Tranche shall be in a minimum aggregate principal amount of $10,000,000 and integral multiples of $1,000,000 in excess thereof; (i) no Default or Event of Default shall exist and a maximum be continuing at the time of $3,000,000such institution, (ii) the Company will sell Second Tranche shall only be used to fund the Transformative Acquisition and to pay fees and expenses in connection therewith and (iii) the conditions precedent set forth in Section 5.03 shall have been satisfied prior to or contemporaneously with the purchase of the Second Tranche Notes; (d) (i) the final maturity date with respect to the Second Tranche Notes shall be the Maturity Date, (ii) the scheduled principal amortization payments for the Second Tranche shall be as set forth in Section 2.05(b) and (iii) the interest rate, repayment premiums and exit fees for the Second Tranche shall be identical to the interest rate, repayment premiums and exit fees, as the case may be, for the First Tranche; (e) the Issuer shall have paid all fees and original issue discount required to be paid in connection therewith, including pursuant to Section 2.07(a); (f) Schedule 2.01 shall be deemed revised to reflect the commitments and commitment percentages of the Second Tranche Note Purchasers, as set forth in the Second Tranche Joinder Agreement; (g) no Purchaser shall be obligated to participate in the Second Tranche, which decision shall be made in the sole discretion of each Purchaser; (h) the Second Tranche Purchasers, the Administrative Agent and the Investors will buyCredit Parties shall have entered into (i) the Second Tranche Joinder Agreement and (ii) such technical amendments to this Agreement as are necessary, in reliance upon the Administrative Agent’s reasonable discretion, to effect the inclusion of the Second Tranche herein; and (i) as a condition precedent to such institution of the Second Tranche and the effectiveness of the Second Tranche Joinder Agreement, the Issuer shall have delivered to the Administrative Agent a certificate of each Credit Party dated as of the date of such institution and effectiveness (in sufficient copies for each Purchaser) signed by a Responsible Officer of such Credit Party (i) certifying and attaching the resolutions adopted by such Credit Party approving or consenting to the Second Tranche, and (ii) certifying that, before and after giving effect to the issuance of the Second Tranche Notes, (x) the representations and warranties contained in this Agreement, and upon the terms and satisfaction of each of the conditions set forth below, that number of Secondary Shares derived from dividing the dollar amount set forth in the Company's option notice by the Issuance Price (pro rata amongst the Investors based upon each Investor's First Tranche Purchase Price), after the earlier to occur of (y) 165 calendar days after the Subscription Date, and (z) two Business Days after the expiration of the second Reset Period for the Initial Shares, upon the satisfaction of each of the following conditions (the Company must exercise this option within 20 calendar days after the earlier of (y) and (z) herein): (A) Delivery into escrow by the Company of the original Secondary Shares, as more fully set forth in the Escrow Agreement attached hereto; (B) The Investors shall have received an opinion of counsel of the Company as set forth in Exhibit D annexed to this Agreement, dated on the Second Tranche Closing Date; (C) The Registration Statement (which includes at least 150% of the Initial Shares which have not yet been subject to a Reset Period, 100% of the Initial Shares that were subject to a Reset Period, 150% of the Secondary Shares, and 100% of the Warrant Shares) has previously become effective and remains effective for at least 40 calendar days and during the ten (10) Trading Days immediately prior to the Company's notice for the Second Tranche Article VI and the Second Tranche Closing Date, and (A) neither the Company nor any of the Investors shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have been addressed and the Investors are reasonably satisfied that the SEC no longer is considering or intends to take such action), and (B) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall exist; (D) The Company shall have obtained all permits and qualifications required by any state for the offer and sale of the Secondary Shares, or shall have the availability of exemptions therefrom. The sale and issuance of the Secondary Shares shall be legally permitted by all laws and regulations to which the Company is subject; (E) The Investors shall have received written certification that the representations and warranties of the Company contained in this Agreement and all Exhibits annexed hereto Note Documents are true and correct in all material respects (and in all respects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) on and as of the Second Tranche Closing Date as though made at each date of such time (issuance, except for to the extent that such representations and warranties specifically made as of a particular refer to an earlier date) with respect to all periods, in which case they are true and as to all events and circumstances occurring or existing to and including the Second Tranche Closing Date; (F) The Company shall have performed, satisfied and complied correct in all material respects with (and in all covenantsrespects if any such representation or warranty is already qualified by materiality or reference to Material Adverse Effect) as of such earlier date, agreements and conditions required by except that for purposes of this AgreementSection 2.13, the Escrow Agreement, the Registration Rights Agreement representations and the Warrants, to be performed, satisfied or complied with by the Company at or prior to the Second Tranche Closing Date; (G) 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 that prohibits or directly and adversely affects any of the transactions contemplated by this Agreement or the Exhibits annexed hereto, and no proceeding shall have been commenced that may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or the Exhibits annexed hereto; (H) The trading of the Common Stock is not suspended by the SEC or the Principal Market, and the Common Stock shall not have been delisted from the OTC Bulletin BoardThe Company currently meets all applicable listing requirements of the Principal Market; (I) No change of control warranties contained in the Company shall have occurred. Change of Control shall mean the occurrence of any of subsections (a) an acquisition after the Subscription Date by a Person of in excess of 50% of the voting securities of the Company, and (b) a replacement of more than one half of Section 6.05 shall be deemed to refer to the board of directors in place as of the Subscription Date which is not approved by those individuals who are members of the board of directors on the Subscription Date in one or a series of transactions, (c) the merger of the Company with, or into another entity, consolidation or sale of all or substantially all of the assets of the Company in one or a series of related transactions, or (d) the execution by the Company of an agreement most recent statements furnished pursuant to which the Company is a party or by which it is bound, providing for any of the events set forth in clauses (a) and (b), respectively, of Section 7.01, and (by) no Default or (c) herein; (J) The average Bid Price for the 20 consecutive Trading Days immediately preceding the notice by the Company Event of its intention to proceed with the second tranche and the days immediately preceding the Second Tranche Closing Date shall be greater than $1.25; (K) The average daily trading volume for the Common Stock as reported by Bloomberg, LP for the 20 Trading Days immediately preceding the Company's notice for the Second Tranche and preceding the Closing for the second tranche shall be a minimum of 100,000; and (L) None of the Investor's, in the event of the Closing of the Secondary Shares would own or be deemed beneficially deemed to own, more than 9.99% of the outstanding shares of Common StockDefault exists.

Second Tranche. At the Company's option (which must be in the form of Upon written notice (certifying compliance with all of the conditions set forth below, referred to as the "Second Tranche Notice", which notice shall be sent by the Company to each of the Investors at least five Business Days prior to within five Business Days after the Closing of the Second Tranche setting forth the dollar amount which shall be a minimum of $1,000,000 and a maximum of $3,000,000) Effective Date), the Company will sell and the Investors will buy, in reliance upon the representations and warranties contained in this Agreement, and upon the terms and satisfaction of each of the conditions set forth below, that number $2,500,000 principal amount of Secondary Shares derived from dividing Debentures and Warrants to purchase 375,000 Warrant Shares. Assuming the dollar amount set forth in Company serves the Company's option notice by Second Tranche Notice as indicated above the Issuance Price (pro rata amongst Second Tranche Closing Date shall occur on the Investors based upon each Investor's First Tranche Purchase Price), tenth Business Day after the earlier Effective Date. The conditions precedent to occur of (y) 165 calendar days after the Subscription Date, and (z) two Business Days after the expiration of the second Reset Period for the Initial Shares, upon the satisfaction of each of the following conditions (the Company must exercise this option within 20 calendar days after the earlier of (y) and (z) herein):Second Tranche Closing Date are as follows: (A) Delivery into escrow by the Company of the original Secondary SharesDebentures and Warrants to be issued on the Second Tranche Closing Date, as more fully set forth in the Escrow Agreement attached hereto; (B) The Investors shall have received an opinion of counsel of the Company in the form as set forth in Exhibit D F annexed to this Agreement, dated on the Second Tranche Closing Date; (C) The Registration Statement (which includes at least 150% of the Initial total number of Underlying Shares which have not yet been subject to a Reset Period, 100% of underlying the Initial Shares that were subject to a Reset Period, 150% of Debentures issued in the Secondary SharesFirst Tranche, and 100% of the Warrant SharesShares underlying the Warrants that were issued in the First Tranche) has previously become effective and remains effective for at least 40 calendar days and during the ten (10) Trading Days immediately prior to the Company's notice for the Second Tranche Notice and the Second Tranche Closing Date, and (A) neither the Company nor any of the Investors shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have been addressed and the Investors are reasonably satisfied that the SEC no longer is considering or intends to take such action)so, and (B) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall exist; (D) The Company shall have obtained all permits and qualifications required by any state for the offer and sale of the Secondary SharesWarrants and Debentures issuable in connection with the Second Tranche, or shall have the availability of exemptions therefrom. The sale and issuance of the Secondary Shares shall be legally permitted by all All laws and regulations to which the Company is subjectsubject shall legally permit the sale and issuance of the Warrants and Debentures issuable in connection with the Second Tranche; (E) The Investors shall have received written certification that the representations representations, covenants, and warranties of the Company contained in this Agreement and all Exhibits annexed hereto are true and correct in all material respects as of the Second Tranche Closing Date as though made at each such time (except for representations and warranties specifically made as of a particular date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Second Tranche Closing Date; (F) The Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement, the Escrow Agreement, the Registration Rights Agreement and the Warrants(including all Exhibits annexed hereto), to be performed, satisfied or complied with by the Company at or prior to the Second Tranche Closing Date; (G) 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 that prohibits or directly and adversely affects any of the transactions contemplated by this Agreement or the Exhibits annexed hereto, and no proceeding shall have been commenced that may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or the Exhibits annexed hereto; (H) The SEC or the Principal Market has not suspended the trading of the Common Stock is not suspended by the SEC or the Principal MarketStock, and the Common Stock shall not have been delisted from the OTC Bulletin BoardThe Company currently Nasdaq National Market. The Company, as of the Second Tranche Closing Date meets all applicable listing requirements of the Principal Nasdaq National Market; (I) No change "Change of control Control" in the Company shall have occurredoccurred since the First Tranche Closing Date. Change of Control shall mean the occurrence of any of (a) an acquisition after the Subscription Date by a Person of in excess of 50% of the voting securities of the Company, (b) a replacement of more than one half of the board of directors in place as of the Subscription Date which is not approved by those individuals who are members of the board of directors on the Subscription Date in one or a series of transactions, (c) the merger of the Company with, or into another entity, consolidation or sale of all or substantially all of the assets of the Company in one or a series of related transactions, or (d) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in (a), (b) or (c) herein; (J) The average Bid Price for the 20 consecutive Trading Days immediately preceding the notice by the Company of its intention to proceed with the second tranche and the days immediately preceding the Second Tranche Closing Date shall be greater than $1.25; (K) The average daily trading volume for the Common Stock as reported by Bloomberg, LP for the 20 Trading Days immediately preceding the Company's notice for the Second Tranche and preceding the Closing for the second tranche shall be a minimum of 100,000; and (L) None of the Investor'sInvestors, in the event of the Closing of the Secondary Shares Second Tranche would own or be deemed beneficially be deemed to own, more than 9.994.99% of the outstanding shares of Common Stock; (K) No Material Adverse Effect shall have occurred since the First Tranche Closing Date; (L) The Company shall not have breached a material term of this Agreement or any Exhibit annexed hereto; (M) The Company shall be in full compliance with the bridge note (the "Bridge Note") held by GCA due October 12, 1999, shall not be in default of any agreement it may have with GCA, and GCA shall not have moved to enforce its interest on the Collateral; and (N) Receipt of proof that the financing statements and Security Agreement (as set forth in Section 4.37 below) remain in full force and effect (as originally filed on or prior to the First Tranche Closing Date) with the proper state authorities in the states of Nevada and Florida. Notwithstanding the foregoing, the Investors will not be obligated to purchase the Debentures and Warrants issuable in connection with the Second Tranche in the event the SEC has not declared the Registration Statement covering the Securities in the First Tranche effective within six months after the First Tranche Closing Date.

Second Tranche. At The Investors shall purchase (pro rata) an aggregate principal amount of Six Hundred Thousand ($600,000) Dollars (the Company's option (which must be in the form of written notice to each of the Investors at least five Business Days prior to the Closing of the "Second Tranche setting forth Investment Amount") principal amount of Preferred Stock, on the dollar amount which shall be ninetieth (90th) day following the effective date of a minimum of $1,000,000 and a maximum of $3,000,000) Registration Statement covering the Company will sell and the Investors will buy, in reliance upon the representations and warranties contained in this Agreement, and upon the terms and satisfaction of each of the conditions set forth below, that number of Secondary Shares derived from dividing the dollar amount set forth in the Company's option notice by the Issuance Price (pro rata amongst the Investors based upon each Investor's First Tranche Purchase Price), after the earlier to occur of (y) 165 calendar days after the Subscription Date, and (z) two Business Days after the expiration of the second Reset Period for the Initial Underlying Shares, upon the satisfaction of each of the following conditions conditions: (i) the Investors shall have received certification that the Company must exercise this option within 20 calendar days after has obtained shareholder approval for the earlier Company's issuance of more than twenty (y20%) and (z) herein):percent of its Common Stock in connection with the transactions contemplated hereby; (Aii) Delivery delivery into escrow by the Company of the an aggregate principal amount of Six Hundred Thousand ($600,000) Dollars of original Secondary SharesPreferred Stock, as more fully set forth in the Escrow Agreement attached heretohereto as Exhibit F; (Biii) The the Investors shall have received an opinion of counsel of the Company as set forth in Exhibit D annexed to this Agreement, dated on the Second Tranche Closing Date; (Civ) The the Investors shall have received certification from the Company that the Certificate of Designation previously supplied to the Investors on the Closing Date for the Initial Shares has not been altered and remains in full force and effect. (v) the Investors shall have received written proof that the Registration Statement (which includes at least 150% of the Initial Shares which have not yet been subject to a Reset Period, 100% of the Initial Shares that were subject to a Reset Period, 150% of the Secondary Shares, and 100% of the Warrant all Underlying Shares) has previously become effective and remains effective for at least 40 calendar ninety days and is effective during the ten (10) three Trading Days immediately prior to the Company's notice Closing Date for the Second Tranche and the Second Tranche Closing Datesecond tranche, and (A) neither the Company nor any of the Investors shall have received notice that the SEC has issued or intends to issue a stop order with respect to the Registration Statement or that the SEC otherwise has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have been addressed and the Investors are reasonably satisfied that the SEC no longer is considering or intends to take such action), and (B) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall exist;. (Dvi) The the Company shall have obtained all permits and qualifications required by any state for the offer and sale of the Secondary SharesPreferred Stock, or shall have the availability of exemptions therefrom. The sale and issuance of the Secondary Shares Preferred Stock shall be legally permitted by all laws and regulations to which the Company is subject; (Evii) The the Investors shall have received written certification that the representations and warranties of the Company contained in this Agreement and all Exhibits annexed hereto are true and correct in all material respects as of the Second Tranche Closing Date for the second tranche of the Preferred Stock as though made at each such time (except for representations and warranties specifically made as of a particular date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Second Tranche Closing DateDate for the second tranche of the Preferred Stock; (Fviii) The the Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement, the Escrow AgreementCertificate of Designation, the Registration Rights Agreement and the Warrants, to be performed, satisfied or complied with by the Company at or prior to the Second Tranche Closing DateDate for the second tranche of the Preferred Stock; (Gix) No 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 that prohibits or directly and adversely affects any of the transactions contemplated by this Agreement or the Exhibits annexed heretoAgreement, and no proceeding shall have been commenced that may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or the Exhibits annexed heretoAgreement; (Hx) The since the date of filing of the Company's most recent SEC Document, no event that had or is reasonably likely to have a Material Adverse Effect has occurred; (xi) the trading of the Common Stock is not suspended by the SEC or the Principal Market, and the Common Stock shall have been approved for listing or quotation on and shall not have been delisted from the OTC Bulletin BoardThe Company currently meets all applicable listing Principal Market. The issuance of shares of Common Stock with respect to the Closing for the first tranche of the Preferred Stock shall not violate the shareholder approval requirements of the Principal Market. The Company shall not have been contacted by the NASD concerning the delisting of the Common Stock on the Principal Market, and the Company currently meets all listing requirements during the thirty (30) day period immediately preceding the Closing Date for the second tranche; (Ixii) No change payment of control in the Company shall have occurred. Change of Control shall mean the occurrence of any of (a) an acquisition after the Subscription Date by a Person of in excess of 50% of the voting securities of the Company, (b) a replacement of more than one half of the board of directors in place fees as of the Subscription Date which is not approved by those individuals who are members of the board of directors on the Subscription Date in one or a series of transactions, (c) the merger of the Company with, or into another entity, consolidation or sale of all or substantially all of the assets of the Company in one or a series of related transactions, or (d) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in (a), (b) or (c) herein; (J) The average Bid Price for the 20 consecutive Trading Days immediately preceding the notice by the Company of its intention to proceed with the second tranche and the days immediately preceding the Second Tranche Closing Date shall be greater than $1.25; (K) The average daily trading volume for the Common Stock as reported by Bloomberg, LP for the 20 Trading Days immediately preceding the Company's notice for the Second Tranche and preceding the Closing for the second tranche shall be a minimum of 100,000Section 13.7 below; and (Lxiii) None the Investors shall have received and been reasonably satisfied with such other certificates and documents as shall have been reasonably requested by the Investors in order for the Investor to confirm the Company's satisfaction of the Investor'sconditions set forth in this Section, including, without limitation, a certificate in substantially the event form and substance of Exhibit C hereto, executed in either case by an executive officer of the Company and to the effect that all the conditions to such Closing shall have been satisfied as at the date of each such certificate. In no event shall the Investors be obligated to purchase any shares of Preferred Stock if a Registration Statement including the Underlying Shares, is not declared effective prior to eighteen (18) months after the Subscription Date. Notwithstanding Sections 2.11 (a) and (b) herein, the Company has the sole option of terminating its obligations to issue the Preferred Stock in these Sections, by giving written notice to the Placement Agent and each of the Secondary Shares would own or Investors at any time prior to twenty (20) days after the effective date of a Registration Statement covering the Underlying Shares. The Preferred Stock shall be deemed beneficially deemed convertible pursuant to own, more than 9.99% the terms and conditions of the outstanding shares Certificate of Common StockDesignation.

Second Tranche. At the Company's sole option, as the Company has the option (which must be in to terminate the form of written notice to each of second tranche for any reason, the Investors shall purchase (pro rata) an aggregate principal amount of Five Hundred Thousand ($500,000) Dollars (the "Second Tranche Investment Amount") principal amount of Preferred Stock, on the ninetieth (90th) day following the first tranche's Effective Date and at least five Business Days the Company's request in writing ten (10) days prior to the second tranche Closing of the Second Tranche setting forth the dollar amount which shall be a minimum of $1,000,000 and a maximum of $3,000,000) the Company will sell and the Investors will buy, in reliance upon the representations and warranties contained in this Agreement, and upon the terms and satisfaction of each of the conditions set forth below, that number of Secondary Shares derived from dividing the dollar amount set forth in the Company's option notice by the Issuance Price (pro rata amongst the Investors based upon each Investor's First Tranche Purchase Price), after the earlier to occur of (y) 165 calendar days after the Subscription Date, and (z) two Business Days after the expiration of the second Reset Period for the Initial Shares, upon the satisfaction of each of the following conditions (the Company must exercise this option within 20 calendar days after the earlier of (y) and (z) herein):conditions: (Ai) Delivery delivery into escrow by the Company of the an aggregate principal amount of Five Hundred Thousand ($500,000) Dollars of original Secondary SharesPreferred Stock, as more fully set forth in the Escrow Agreement attached heretohereto as Exhibit E; (Bii) The the Investors shall have received an opinion of counsel of the Company as set forth in Exhibit D annexed to this Agreement, dated on the Second Tranche Closing Date; (Ciii) The Registration Statement (which includes at least 150% of the Initial Shares which have not yet been subject to a Reset Period, 100% of the Initial Shares that were subject to a Reset Period, 150% of the Secondary Shares, and 100% of the Warrant Shares) has previously become effective and remains effective for at least 40 calendar days and during the ten (10) Trading Days immediately prior to the Company's notice for the Second Tranche and the Second Tranche Closing Date, and (A) neither the Company nor any of the Investors shall have received notice certification from the Company that the SEC has issued or intends to issue a stop order with respect Certificate of Designation previously supplied to the Registration Statement or that Investors on the SEC otherwise Closing Date for the first tranche has suspended or withdrawn the effectiveness of the Registration Statement, either temporarily or permanently, or intends or has threatened to do so (unless the SEC's concerns have not been addressed altered and the Investors are reasonably satisfied that the SEC no longer is considering or intends to take such action), remains in full force and (B) no other suspension of the use or withdrawal of the effectiveness of the Registration Statement or related prospectus shall existeffect; (Div) The the Company shall have obtained all permits and qualifications required by any state for the offer and sale of the Secondary SharesPreferred Stock, or shall have the availability of exemptions therefrom. The sale and issuance of the Secondary Shares Preferred Stock shall be legally permitted by all laws and regulations to which the Company is subject; (Ev) The the Investors shall have received written certification that the representations and warranties of the Company contained in this Agreement and all Exhibits annexed hereto are true and correct in all material respects as of the Second Tranche Closing Date for the second tranche of the Preferred Stock as though made at each such time (except for representations and warranties specifically made as of a particular date) with respect to all periods, and as to all events and circumstances occurring or existing to and including the Second Tranche Closing DateDate for the second tranche of the Preferred Stock; (Fvi) The the Company shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement, the Escrow AgreementCertificate of Designation, the Registration Rights Agreement and the Warrants, to be performed, satisfied or complied with by the Company at or prior to the Second Tranche Closing DateDate for the second tranche of the Preferred Stock; (Gvii) No 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 that prohibits or directly and adversely affects any of the transactions contemplated by this Agreement or the Exhibits annexed heretoAgreement, and no proceeding shall have been commenced that may have the effect of prohibiting or adversely affecting any of the transactions contemplated by this Agreement or the Exhibits annexed heretoAgreement; (Hviii) The since the date of filing of the Company's most recent SEC Document, no event that had or is reasonably likely to have a Material Adverse Effect has occurred; (ix) the trading of the Common Stock is not suspended by the SEC or the Principal Market, and the Common Stock shall have been approved for listing or quotation on and shall not have been delisted from the OTC Bulletin BoardThe Company currently meets all applicable listing Principal Market. The issuance of the Securities with respect to the Closing for the first tranche of the Preferred Stock shall not violate the shareholder approval requirements of the Principal Market. Except as set forth on Schedule A attached hereto, the Company shall not have been contacted by the NASD concerning the delisting of the Common Stock on the Principal Market, and the Company currently meets all listing requirements during the thirty (30) day period immediately preceding the Closing Date for the second tranche; (Ix) No change payment of control in the Company shall have occurred. Change of Control shall mean the occurrence of any of (a) an acquisition after the Subscription Date by a Person of in excess of 50% of the voting securities of the Company, (b) a replacement of more than one half of the board of directors in place fees as of the Subscription Date which is not approved by those individuals who are members of the board of directors on the Subscription Date in one or a series of transactions, (c) the merger of the Company with, or into another entity, consolidation or sale of all or substantially all of the assets of the Company in one or a series of related transactions, or (d) the execution by the Company of an agreement to which the Company is a party or by which it is bound, providing for any of the events set forth in (a), (b) or (c) herein; (J) The average Bid Price for the 20 consecutive Trading Days immediately preceding the notice by the Company of its intention to proceed with the second tranche and the days immediately preceding the Second Tranche Closing Date shall be greater than $1.25; (K) The average daily trading volume for the Common Stock as reported by Bloomberg, LP for the 20 Trading Days immediately preceding the Company's notice for the Second Tranche and preceding the Closing for the second tranche shall be a minimum of 100,000Section 12.7 below; and (Lxi) None the Investors shall have received and been reasonably satisfied with such other certificates and documents as shall have been reasonably requested by the Investors in order for the Investor to confirm the Company's satisfaction of the Investor's, conditions set forth in the event of the Closing of the Secondary Shares would own or be deemed beneficially deemed to own, more than 9.99% of the outstanding shares of Common Stock.this