Common use of Conditions to the Second Closing Clause in Contracts

Conditions to the Second Closing. The obligations of each Investor to accept delivery of and to make payments for, and the Company’s obligation to sell and issue, the Second Closing Shares and the Second Closing Warrants are subject to (i) the Company’s receipt of stockholder approval for the issuance of the Second Closing Shares and the Second Closing Warrants as may be required pursuant to the rules of the Nasdaq Stock Market (the “Stockholder Approval Condition”); and (ii) the Company’s receipt of stockholder approval for the amendment of the Company’s Amended and Restated Certificate of Incorporation to increase the number of authorized shares of Common Stock by an amount sufficient to issue the Securities to be issued in the Second Closing (the “Certificate Amendment”); and (iii) evidence of the filing of the Certificate Amendment with the Delaware Secretary of State; and (iv) receipt by the Investors of an opinion from counsel to the Company in substantially the form attached hereto as Exhibit C. Upon the satisfaction of the foregoing conditions, (i) the Company will issue to the Investors the Second Closing Shares and Second Closing Warrants; and (ii) the Escrow Agent shall promptly release the Escrowed Funds to the Company consistent with the terms of the Escrow Agreement, and any interest on the Escrowed Funds shall be returned by the Escrow Agent to the Investors. If the Stockholder Approval Condition is not satisfied by June 30, 2005, then the funds deposited with the Escrow Agent for the Second Closing shall be returned to the Investors in the manner specified in the Escrow Agreement.