Common use of Third Closing Clause in Contracts

Third Closing. The third closing (the “Third Closing”) shall take place at the offices of the Purchaser on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser to consummate the Third Closing is subject to the fulfillment or waiver by the Purchaser of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010.

Third Closing. (a) The third closing delivery by Purchaser to Seller and/or Kaoufman, as the case may be, of the First Guarantee Shares, the Second Guarantee Shares, the cash amount provided by Section 7.5(b)(i) and the Second Guarantee Cash Amount, if any, (such event, the “Third Closing”) shall take place on February 24, 2009, at such place and time as Parent and Kaoufman shall agree, it being acknowledged that the offices of the Purchaser Third Closing may, if so agreed, take place by telephone, fax and e-mail communication without need for a physical closing location. The date on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser to consummate which the Third Closing is subject to occur is referred to herein as the fulfillment or waiver by the Purchaser of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the “Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilledDate”. (b) At the Third Closing, the or on such other date as may be expressly provided for below, Purchaser shall issue deliver to: (i) Seller an amount in cash in US Dollars equal to the Company or its Permitted Transferees sum of (x) five million US Dollars (US$5,000,000) and (y) the Second DebentureGuarantee Cash Amount, if any; such amount to be paid, or caused to be paid, by Purchaser by wire transfer of immediately available cleared funds to the account or accounts to be designated to Purchaser by Seller no later than February 20, 2009; (ii) Seller no later than on the Business Day immediately following the Third Closing Date, one or more share certificates (as requested by Seller pursuant to Section 7.5(k)(i)) for the account of Seller evidencing the issuance of the Seller Shares to Seller, and a written confirmation from the transfer agent of Parent confirming the issuance of the Seller Shares to Seller, provided that Parent shall deliver to Seller an extract from the register of shareholders of Parent confirming the issuance of the Seller Shares to Seller, duly signed by the transfer agent of Parent on the Business Day immediately following such date; (iii) Kaoufman no later than on the Business Day immediately following the Third Closing Date, one or more share certificates (as requested by Seller pursuant to Section 7.5(k)(ii)) for the account of Kaoufman evidencing the issuance of the Kaoufman Shares to Kaoufman, and a written confirmation from the transfer agent of Parent confirming the issuance of the Kaoufman Shares to Kaoufman, provided that Parent shall deliver to Kaoufman an extract from the register of shareholders of Parent confirming the issuance of the Kaoufman Shares to Kaoufman, duly signed by the transfer agent of Parent on the Business Day immediately following such date; (iv) Seller a copy, certified by an officer of Parent, of the board resolutions of Parent approving the issuance of a number of CEDC Shares to Seller and/or Kaoufman equal to the sum of (x) the First Guarantee Shares and (y) the Second Guarantee Shares, (v) Seller, in respect of the Class B Shares in Newco, transfer orders in the required form set forth by applicable law duly executed by an authorized representative of Purchaser and duly witnessed, dated as of the Third Closing Date and containing the instruction to register the transfer from Seller to Purchaser of three hundred seventy-five (375) Class B Shares in Newco; and (vi) Seller two (2) original executed counterparts of Amendment No. 1 to the Shareholders Agreement, executed by a duly empowered representative of Purchaser. (c) The obligations At the Third Closing, Seller shall deliver to consummate Purchaser: (i) a share certificate evidencing ownership by Seller of one thousand eight hundred seventy-five (1,875) Class B Shares in Newco for partial cancellation and reissue evidencing the balance of one thousand five hundred (1,500) Class B Shares in Newco to remain owned by Seller immediately after the Third Closing; provided that evidence that the foregoing share certificate has been sent by express courier to the secretary of Newco shall be deemed to satisfy the delivery obligation set forth in this Section 4.11 (c)(ii). (ii) transfer orders in the required form set forth by applicable law duly executed by an authorized representative of Seller and duly witnessed, dated as of the Third Closing may be terminated at any time prior Date and containing the instruction to register the transfer from Seller to Purchaser of three hundred seventy-five (375) Class B Shares in Newco; (iii) a duly signed resolution of the board of directors of Newco approving the transfer from Seller to Purchaser of three hundred seventy-five (375) Class B Shares in Newco; and (iv) two (2) original executed counterparts of Amendment No. 1 to the Third Closing: (i) Shareholders Agreement, executed by a written agreement between the Company or its Permitted Transferees duly empowered representative of Seller and the Purchaser; or Newco. (iid) All actions to be taken and all documents to be executed and delivered by the Purchaser, if any condition specified in section 4.3 Parties at the Third Closing shall not be deemed to have been satisfied taken and executed simultaneously, and, except as permitted hereunder, no proceedings shall be deemed taken nor any documents executed or waived in writing by the Purchaser on or before December 14delivered until all have been taken, 2010executed and delivered.

Third Closing. The third (a) Subject to the terms and conditions set forth in this Agreement, the closing of the transactions contemplated by Section 2.2(c) of this Agreement (the “Third Closing”) shall take place at the offices place and on the date (the “Third Closing Date”) as specified by Buyer in a notice to the Selling Shareholders duly signed and delivered by Buyer as promptly as practicable following the delivery of the Purchaser 2009 Audited Financial Statements to Buyer (such Third Closing to take place within five (5) Business Days following such delivery and in any event no later than May 15, 2010, unless the delivery of the 2009 Audited Financial Statements has been delayed due to a failure on the fourteenth business day following part of Key Management to timely furnish the satisfaction or waiver Auditors with the management accounts required for the preparation thereof, in which case such payment shall be made within five (5) Business Days of delivery of the conditions set forth in this section 4.32009 Audited Financial Statements). (ab) The obligation Upon the occurrence of a Prospective Event of Change in Control after the Purchaser to consummate Second Closing Date and before the Third Closing is subject Date, Buyer shall notify the Sellers’ Representative within three (3) Business Days of the occurrence of such Prospective Event of Change in Control, and the Third Closing shall take place on an accelerated basis. Notwithstanding any other provision of this Agreement to the fulfillment or waiver by the Purchaser of the following conditions on the date of the Third Closing: contrary, (i) on or before December 14, 2010, the Second Condition Precedent was completed; Third Closing shall take place immediately prior to the closing of such Prospective Event of Change in Control and (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement Third Installment Consideration shall be true equal to the Base Purchase Price minus the Second Installment Consideration and correct the Initial Cash Consideration, and payable in all material respects at cash. (c) Upon the occurrence of a Key Management Dismissal Event after the Second Closing Date and before the Third Closing as if made again at and as Date, the Third Closing shall take place on an accelerated basis. Notwithstanding any other provision of that time save for any matter incorrect because this Agreement to the contrary, (i) the Third Closing shall take place within seven (7) Business Days of subsequent action the occurrence of the Key Management Dismissal Event, (ii) the Third Installment Share Consideration shall be equal to US$68,906,250 divided by the Purchaser since First Closing; Average FM Share Price and (iii) the Company Additional Share Consideration shall be equal to US$350,000,000 minus the Initial Cash Consideration, the Second Installment Consideration and US$68,906,250, divided by the Shareholders Average FM Share Price. (d) The Sellers’ Representative shall have performed and carried out all deliver the covenants and other provisions in this agreement, required Third Installment Allocation Schedule to have been performed and carried out by it Buyer no later than five (5) Business Days prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilledDate. (be) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between , Buyer shall deliver to the Company or its Permitted Transferees Sellers’ Representative for the benefit of the Selling Shareholders and the Purchaser; or (ii) by Option Holders true copies of the Purchaserregister of members of Buyer indicating the transfer to the Selling Shareholders and the Option Holders and registration in the name of the Selling Shareholders and the Option Holders in respect of the Third Installment Share Consideration, if any condition specified any, and the Additional Share Consideration, if any, as set forth opposite their respective names in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010Third Installment Allocation Schedule.

Third Closing. The third closing (i) Solely in the “Third Closing”) event that the Second Closing Trigger Event and the Initial Second Closing shall take place at have previously occurred, the offices of Company shall have the Purchaser on right, but not the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser obligation, to consummate request that the Third Closing is subject Investors agree to the fulfillment or waiver by the Purchaser purchase $10,000,000 in aggregate principal amount of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (except ii) In the event that breach thereof which is not material breach shall not prevent the performance of Company desires to request that the Third ClosingClosing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) , the Company shall have delivered deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the Purchaser a certificate of an executive officer or certificate signed by date that is fifteen (15) Business Days prior to the Permitted Transferees or their officersThird Closing Deadline, as the case maybe, confirming which Third Closing Request shall (x) sets forth that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Purchaser Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall issue not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing Deadline. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company or of its Permitted Transferees the Second Debenture. (c) The obligations election to consummate the purchase such Third Closing may be terminated at any time Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing: Closing Deadline, which Third Closing Election Notice shall specify that such Third Closing Investor is exercising its right under this Section 2.1(c) to purchase such Third Closing Investor’s Applicable Third Closing Notes (i) by any Third Closing Investor that shall so deliver a written agreement between Third Closing Election Notice to the Company or its Permitted Transferees and in accordance with the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010foregoing is herein referred to as an “Exercising Third Closing Investor”).

Third Closing. The third closing (the “Third Closing”a) shall take place at the offices of the Purchaser on the fourteenth business day following Subject to the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation Agreement, the closing of the Purchaser to consummate the Third Closing is subject to the fulfillment or waiver purchase and sale by the Purchaser of the following conditions Third Closing Shares, if any, pursuant to this Agreement (the “Third Closing”) shall be held at the offices of Debevoise & ▇▇▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, at 10:00 a.m. New York time on the date later of (i) the third business day after the satisfaction or waiver of the latest to occur of the conditions set forth in Section 1.5 (other than those conditions that by their nature are to be satisfied by actions taken at the Third Closing, but subject to their satisfaction or waiver) and (ii) the twelfth business day after which the Company provides notice to the Purchaser of the number of the Third Closing: Closing Shares (i) on but subject to the consummation of the Permitted Offering or before December 14the expiration of the period in which the Permitted Offering may be consummated in accordance with the definition thereof (as applicable), 2010or at such other date, the Second Condition Precedent was completed; (ii) all the Company’s representations time and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing place as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders Purchaser agree) (such date, the “Third Closing Date” and, together with the First Closing Date and the Second Closing date, the “Closing Dates”). Notwithstanding the foregoing, if at the time the conditions to the First Closing and the Second Closing have been satisfied or waived, the conditions to the Third Closing have also been satisfied or waived, the First Closing, the Second Closing and the Third Closing shall have performed and carried out all take place simultaneously; provided, that, if the covenants and conditions to the Third Closing set forth in Section 1.5 (other provisions in this agreementthan those conditions that by their nature are to be satisfied by actions taken at the Third Closing, but subject to their satisfaction or waiver) are satisfied or waived prior to October 31, 2014 such that the Third Closing would be required to take place prior to October 31, 2014, at the option of the Company (upon prior written notice delivered to the Purchaser at least twelve business days prior to the date on which the Third Closing would have been performed required to occur but for this proviso), the Third Closing shall take place on the first business day after October 31, 2014 or at such other date, time and carried out by it place as the Company and the Purchaser agree. (b) Subject to the satisfaction or waiver at or prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third applicable conditions to the Second Closing in Section 1.5, at the Second Closing);: (iv1) there shall not the Company will deliver to the Purchaser (i) certificates representing the Third Closing Shares and (ii) all other documents, instruments and writings required to be delivered by the Company to the Purchaser at or prior to the Third Closing pursuant to this Agreement or otherwise required in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreementconnection herewith; and (v2) the Company shall have Purchaser will deliver or cause to be delivered (i) to the Purchaser a certificate of an executive officer or certificate signed bank account designated by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified Company in clauses writing at least two (ii2) through (v) above have been fulfilled. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time business days prior to the Third Closing: (i) Closing Date, the Third Closing Purchase Price by a written agreement between the Company or its Permitted Transferees wire transfer of immediately available funds, and the Purchaser; or (ii) by the Purchaserall other documents, if any condition specified in section 4.3 shall not have been satisfied or waived in writing instruments and writings required to be delivered by the Purchaser on to the Company at or before December 14, 2010prior to the Third Closing pursuant to this Agreement or otherwise required in connection herewith.

Third Closing. The third closing (A) Subject to the terms and conditions set forth in Section 4.2 and elsewhere in this Agreement, during the time specified below the Company shall deliver a written notice to the Purchasers (a "Third Closing Notice") requiring the Purchasers to purchase an additional 367.50 shares of Preferred Stock (the “"Third Tranche Preferred Stock" and together with the Second Tranche Preferred Stock, the "Additional Preferred Stock") for an aggregate purchase price of $735,000 (the "Third Tranche Purchase Price"). The Company shall deliver a Third Closing Notice no earlier than 60 days after the date on which the initial Registration Statement filed with the Commission with respect to the Preferred Stock has been declared effective by the Commission and no later than 90 days after such effective date. At the Third Closing each Purchaser shall be obligated (subject to the terms and conditions herein) to purchase such portion of the Third Tranche Preferred Stock sold by the Company as set forth opposite such Purchaser's name on Schedule 1 at the purchase prices set forth on Schedule 1. The closing of the purchase and sale of the Third Tranche Preferred Stock (the "Third Closing”") shall take place at in the offices same manner as the Initial Closing, on such date indicated in the Third Closing Notice (which may not be prior to the 10th day after receipt by the Purchasers of the Purchaser on Third Closing Notice or as otherwise agreed to by the fourteenth business day following parties); provided, however, that in no case shall the satisfaction or waiver of Third Closing take place unless and until the conditions set forth listed in this section 4.3. (a) Section 4.2 have been satisfied or waived by the appropriate party. The obligation date of the Purchaser to consummate the Third Closing is subject hereinafter referred to as the fulfillment or waiver by the Purchaser of the following conditions on the date of the "Third Closing:Closing Date.") (iB) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at At the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iiia) the Company shall deliver to each Purchaser (1) stock certificates representing the shares of Preferred Stock (the "Third Tranche Shares" and together with the Initial Shares and the Shareholders shall have performed Second Tranche Shares, the "Shares") purchased by such Purchaser as set forth next to such Purchaser's name on Schedule 1 attached hereto, each registered in the name of such Purchaser and carried out (2) all the covenants other documents, instruments and other provisions in this agreement, writings required to have been performed and carried out by it delivered at or prior to the Third Closing by the Company pursuant to this Agreement and the Registration Rights Agreement, and (except that breach thereof which is not material breach b) each Purchaser shall not prevent deliver to the performance Company (1) the portion of the Third Closing); (iv) there shall not be Tranche Purchase Price set forth next to its name on Schedule 1, in effect any injunction or restraining order issued United States dollars in immediately available funds by a court of competent jurisdiction wire transfer to an account designated in any action or proceeding against the consummation of the transactions contemplated writing by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer for such purpose on or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: Closing Date, and (i2) all documents, instruments and writings required to have been delivered at or prior to the Third Closing by a written agreement between the Company or its Permitted Transferees such Purchaser pursuant to this Agreement and the Purchaser; or (ii) by Registration Rights Agreement. The Second Closing and the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by Third Closing are hereinafter collectively referred to as the Purchaser on or before December 14, 2010"Subsequent Closings," and the Second Closing Date and the Third Closing Date are hereinafter referred to as the "Subsequent Closing Dates."

Third Closing. The closing of the purchase and sale of the third closing Twenty-One Million Seven Hundred Thousand Dollars ($21,700,000) in principal amount of Securities, if any, by and to the Purchaser hereunder (the “Third Closing”, with each of the Initial Closing, any Second Closing and any Third Closing being referred to herein as a “Closing”, and each of any Second Closing and any Third Closing being referred to herein as a “Subsequent Closing”) shall take place be held at the offices of the Purchaser on the fourteenth Shearman & Sterling LLP, Four ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ within one business day following the satisfaction or waiver date on which the last of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser Section 6.2 and Section 7.2 applicable to consummate the Third Closing is subject to the fulfillment or waiver by the Purchaser of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except other than those conditions that breach thereof which is not material breach shall not prevent the performance of the by their nature are to be satisfied at any Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by accordance with this Agreement but in no event later than July 31, 2014 (such date, the “Third Closing Date”, with each of the Initial Closing Date, any Second Closing Date and any Third Closing Date being referred to herein as a “Closing Date”, and each of any Second Closing Date and any Third Closing Date being referred to herein as a “Subsequent Closing Date”), or at such other time and place as the Company and the Purchaser mutually agree upon. The settlement of the purchase and sale of the Securities to be purchased and sold at the Third Closing shall take place in two installments, with the first installment in the principal amount of Ten Million Eight Hundred Fifty Thousand Dollars ($10,850,000) occurring on or before December 14the Third Closing Date, 2010and the second installment in the principal amount of Ten Million Eight Hundred Fifty Thousand Dollars ($10,850,000) occurring on the date that is six (6) months following any Third Closing Date but in no event later than January 31, 2015.

Third Closing. The third closing (i) Solely in the “Third Closing”) event that the Second Closing Trigger Event and the Initial Second Closing shall take place at have previously occurred, the offices of Company shall have the Purchaser on right, but not the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. (a) The obligation of the Purchaser obligation, to consummate request that the Third Closing is subject Investors agree to the fulfillment or waiver by the Purchaser purchase $10,000,000 in aggregate principal amount of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it Notes prior to the Third Closing Deadline in accordance with this Section 2.1(c). (except ii) In the event that breach thereof which is not material breach shall not prevent the performance of Company desires to request that the Third ClosingClosing Investors purchase the Third Closing Notes pursuant to this Section 2.1(c); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) , the Company shall have delivered deliver each Third Closing Investor written notice of such request (a “Third Closing Request”) after the Initial Second Closing but on or prior to the Purchaser a certificate of an executive officer or certificate signed by date that is fifteen (15) Business Days prior to the Permitted Transferees or their officersThird Closing Deadline, as the case maybe, confirming which Third Closing Request shall (x) sets forth that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At aggregate principal amount of such Third Closing Notes that the Company requests to sell to the Third Closing Investors at the Third Closing, shall be $10,000,000, (y) set forth the Purchaser Company’s irrevocable offer to sell the Third Closing Notes specified in the Third Closing Request to the Third Closing Investors in accordance with this Section 2.1(c), and (z) specify the closing date for such sale of Third Closing Notes hereunder (the “Third Closing Date”), which Third Closing Date (A) shall issue not be earlier than the fifteenth (15th) Business Day following the delivery of the Third Closing Election Notice to the Company, and (B) shall not be later than the Third Closing Deadline. (iii) In the event that the Company shall timely deliver a Third Closing Request to the Third Closing Investors in accordance with the foregoing, each Third Closing Investor shall have the right, but not the obligation, to purchase all, but not less than all, of the Third Closing Notes specified in the Third Closing Request (which amount shall be allocated among the Third Closing Investors in proportion to the principal amount set forth across from such Third Closing Investor’s name under the heading “Principal Amount of Third Closing Note” on the Schedule of Investors (with respect to any particular Third Closing Investor, such Third Closing Notes are herein referred to as such Third Closing Investor’s “Applicable Third Closing Notes”). In the event that any Third Closing Investor desires to purchase such Third Closing Investor’s Applicable Third Closing Notes, such Third Closing Investor must deliver written notice to the Company or of its Permitted Transferees the Second Debenture. (c) The obligations election to consummate the purchase such Third Closing may be terminated at any time Investor’s Applicable Third Closing Notes hereunder (a “Third Closing Election Notice”) no later than five (5) Business Days after the Company’s request and in no event later than five (5) Business Days prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the PurchaserClosing Deadline, if any condition specified in section 4.3 which Third Closing Election Notice shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010.specify that such Third Closing Investor is exercising

Third Closing. The third closing (a) Prior to the commencement of the Phase 0 study (as defined in the Updated R&D Budget), the Company shall require the prior written approval of Purchaser to the location and protocol of such Phase 0 Study, which approval shall be in Purchaser’s sole discretion. Upon completion of such Phase 0 study, the Company shall deliver written notice to the Purchaser (“Company Notice”), along with a report summarizing the results of the Phase 0 study pursuant to the terms of the RELO Agreement. (b) Within forty-five (45) days of receiving the Company Notice, the Purchaser may deliver to the Company, at its sole discretion, a written notice (the “Third Closing Notice”) that that Purchaser elects to proceed with the R&D Program and pursue the filing of an IND (as defined in the RELO Agreement). If the Purchaser does not deliver the Third Closing Notice, then the parties hereto shall have no further rights or obligations under this Section 2.4 hereof. (c) If the Purchaser delivers the Third Closing Notice, then the Company and the Purchaser will proceed to the Third Closing, which will occur within 15 days following the receipt of the Third Closing Notice at the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇ L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇-▇▇▇▇, or at such other place as may be mutually agreed upon between the parties hereto, on such date and time as shall be mutually agreed upon between the parties hereto (the “Third Closing”) shall take place at ” and the offices date of the Purchaser on Third Closing, the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3“Third Closing Date”). (ad) The It shall be a condition to the obligation of the Company and the Purchaser to consummate the Third Closing is subject to that the fulfillment or waiver by NYSE Amex shall have approved the Purchaser of Third Closing Shares for listing on the NYSE Amex. (e) At the Third Closing the following conditions on the date transactions shall take place, all of the Third Closingwhich shall be deemed to have occurred simultaneously: (i) on or before December 14The Company shall sell and issue to the Purchaser, 2010and the Purchaser shall purchase from the Company, the Second Condition Precedent was completed;number of shares of Common Stock equal to the quotient of (i) $750,000 divided by (ii) the per share price that is equal to 120% of the closing price of the Common Stock on the primary Trading Market on which the Common Stock is then trading as reported by Bloomberg L.P. for the last trading day preceding the Third Closing Date (the “Third Closing Shares”). (ii) The Purchaser shall transfer to the Company the amount of $750,000 by wire transfer of immediately available funds to the account of the Company (“Third Closing Payment”). (iii) If Third Closing Shares are being issued, the Company shall deliver to the Purchaser a stock certificate, free and clear of all restrictive legends (except as expressly provided in Section 5.1(a)), evidencing the Third Closing Shares, registered in the name of the Purchaser. (iv) The Purchaser shall provide the Company with a compliance certificate, in form and substance reasonably satisfactory to the Company, certifying the accuracy of the Purchaser’s representations and warranties in this agreement were true and correct on the date Agreement as of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilledDate. (b) At the Third Closing, the Purchaser shall issue to the Company or its Permitted Transferees the Second Debenture. (c) The obligations to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified in section 4.3 shall not have been satisfied or waived in writing by the Purchaser on or before December 14, 2010.”

Third Closing. The At any time following the Second Closing and on or prior to December 31, 2010, and provided that the ATA/RWI Investors (as defined herein) are not at such time in breach of Section 4.8 hereof, the Company shall issue and sell additional Notes and Warrants for up to an aggregate purchase price of $25,000 at a third closing (the “Third Closing” and each of the First Closing, the Second Closing and the Third Closing, a “Closing”) to ATA Ventures and/or RWI Ventures if so requested in writing by ATA Ventures or RWI Ventures, respectively. Each of ATA Ventures on the one hand and RWI Ventures on the other hand shall take place at have the offices right to purchase up to its respective pro rata portion of the Purchaser Notes and Warrants to be sold in the Third Closing based on their relative ownership in the Company immediately prior to the Third Closing. The Third Closing shall occur on or before December 31, 2010, or at such time and place as the Company and each of ATA Ventures and RWI Ventures shall determine (the "Third Closing Date" and each of the First Closing Date, the Second Closing Date, and the Third Closing Date, a “Closing Date”). Any such Third Closing shall be made on the fourteenth business day following the satisfaction or waiver of the terms and conditions set forth in this section 4.3. (a) The obligation of the Purchaser to consummate the Third Closing is subject to the fulfillment or waiver by the Purchaser of the following conditions on the date of the Third Closing: (i) on or before December 14, 2010, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again at and as of that time save for any matter incorrect because of subsequent action by the Purchaser since First Closing; (iii) the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) Agreement. At the Third Closing, (A) this Agreement and the Purchaser other Transaction Documents shall issue to have been executed and delivered by the Company or its Permitted Transferees and each ATA/RWI Investor participating in such Third Closing, (B) each of the Second Debenture. (c) The obligations conditions to consummate the Third Closing may be terminated at any time prior to the Third Closing: (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; or (ii) by the Purchaser, if any condition specified described in section 4.3 this Agreement shall not have been satisfied or waived in writing as specified therein and (C) full payment of each such ATA/RWI Investor’s Purchase Price shall have been made by wire transfer of immediately available funds against physical delivery by the Purchaser on or before December 14Company of duly executed certificates representing the Note and Warrant being purchased by such ATA/RWI Investor. Upon the consummation of the Third Closing, 2010Annex I shall be amended by the Company to reflect the sale of the Notes and Warrants in the Third Closing.

Third Closing. The third closing On the Third Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and each Purchaser, severally and not jointly, agrees to purchase, up to an aggregate of $364,000 in Principal Amount of the Debentures (corresponding to an aggregate Third Closing Subscription Amount of up to $325,000). At the Third Closing, each Purchaser shall deliver to the Control Account Agent, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s Third Closing Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Debenture and a Warrant, as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at the Third Closing. Subject to the terms and conditions herein, on or about September 30, 2014, the Company shall deliver written notice to each Purchaser of the Third Closing (“Third Closing Notice”). Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3 for the Third Closing”) , the Third Closing shall take place occur at the offices of EGS or such other location as the Purchaser on the fourteenth business day following the satisfaction or waiver of the conditions set forth in this section 4.3. parties shall mutually agree within three (a3) The obligation of the Purchaser to consummate the Third Closing is subject to the fulfillment or waiver by the Purchaser of the following conditions on Trading Days from the date of the Third Closing: (i) on or before December 14Closing Notice. Notwithstanding the foregoing, 2010at the sole option of the Purchasers, the Second Condition Precedent was completed; (ii) all the Company’s representations and warranties in this agreement were true and correct on the date of this agreement, the Company’s representations and warranties in this agreement shall be true and correct in all material respects at the Third Closing as if made again may occur at any time after the Second Closing Date and as of that time save for any matter incorrect because of subsequent action within 15 Trading Day notice by the Purchaser since First Closing; (iii) Purchasers to the Company and the Shareholders shall have performed and carried out all the covenants and other provisions in this agreement, required of their intent to have been performed and carried out by it prior to the Third Closing (except that breach thereof which is not material breach shall not prevent the performance of the Third Closing); (iv) there shall not be in effect any injunction or restraining order issued by a court of competent jurisdiction in any action or proceeding against the consummation of the transactions contemplated by this agreement; and (v) the Company shall have delivered to the Purchaser a certificate of an executive officer or certificate signed by the Permitted Transferees or their officers, as the case maybe, confirming that the conditions specified in clauses (ii) through (v) above have been fulfilled. (b) At conduct the Third Closing, the Purchaser shall issue to irrespective of the Company or its Permitted Transferees meeting the Second Debenture. (c) The obligations to consummate requirements of the Third Closing may be terminated at any time prior to Corporate Milestone, provided that in no event shall the Third Closing: Closing occur (i) by a written agreement between the Company or its Permitted Transferees and the Purchaser; later than October 30, 2014 or (iiiii) by on or after the Purchaserdate, if any condition specified any, on which all of the then outstanding Debentures are prepaid in section 4.3 shall not have been satisfied full in accordance with the Debentures or waived otherwise with the written consent of the Required Holders (as defined in writing by the Purchaser on or before December 14Debenture), 2010in each case without the prior written consent of the Company.