Common use of Note Purchases Clause in Contracts

Note Purchases. It is estimated that N▇▇▇▇ wi▇▇ ▇▇▇▇ire additional funds to commence development of Newco's products. Within the period commencing on the Initial Closing Date and ending on the third year anniversary of the Initial Closing Date, (the "Development Period"). EIS and the Company may provide to Newco up to an aggregate maximum amount of U.S.$10,000,000, such funding to be provided by EIS and the Company on a pro rata basis based on their respective equity interests, on a fully-diluted basis, in Newco (the "Development Funding"). In order to ensure the Company has funds available for its share of the Development Funding, EIS has agreed to advance to the Company up to U.S.$8,010,000 subject to the terms and conditions set forth below and in the Note. (A) The Company shall issue to EIS the Note in the form attached hereto as Exhibit A-1, and from time to time at the request of the Company, EIS shall make advances thereunder to the Company (each an "Advance") in an aggregate principal amount of up to U.S.$8,010,000 (the "Total Commitment"); provided that the Total Commitment shall be reduced in an amount equal to amounts funded by the Company to Newco as Development Funding (each a "Development Funding Contribution") for which an Advance was not concurrently requested in respect of the Note. The aggregate amount of the Advances made to the Company shall not in any event exceed the amount of Development Funding funded by the Company to Newco (after giving effect to any concurrent Advance made under the Note and Development Funding Contribution made by the Company)(the "Maximum Amount"). (B) Each Advance shall be subject to the following terms and conditions: (i) Each Advance shall be made at such time that (x) each Participant (as defined in the JDOA) shall have determined, pursuant to Clause 6.3 of the JDOA that Development Funding shall be provided, (y) Newco shall have provided written notice thereof to EIS and to the Company and (z) the Company shall have delivered a written request to EIS in the form attached hereto as Exhibit A-2 (the "Disbursement Notice") not less than 10 business days prior to the requested Note Closing Date; (ii) The minimum amount of each Advance shall be not less than $250,000, (or such lesser amount up to the Maximum Amount or the Total Commitment, as the case may be, if the amount that remains available is less than $250,000). The Company shall be entitled to receive up to 4 Advances in any calendar year; (iii) Each Advance under the Note shall (x) occur only during the Development Period, (y) shall not exceed the Total Commitment and (z) shall not exceed the Maximum Amount; (iv) At the time of each Advance, no material breach or default by the Company under any Transactions Document shall have occurred and be continuing; (v) At the time of each Advance, the representations and warranties of the Company contained in Section 2(a), (b)(ii)(iv), (c), (d), (g), (i), (j), (k), (1) and (m) herein shall be true and correct in all material respects as of the date made and as of the Note Closing Date, except for changes to Section 2(b)(iii), (k)(i) and (iii), and (m) since the date hereof to the extent such changes have not caused a Company Material Adverse Effect (as defined below); and (vi) At the time of any such Advance, EIS shall have received any required approvals under the Mergers and Takeovers (Control) Acts 1978-1996, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as am▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇her similar law and regulation; provided that in the event that EIS has not obtained approval under the Mergers and Takeovers (Control) Acts 1978-1996, the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as am▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇er similar law or regulation at the time a determination of the necessity of such funding by the Newco Directors and such approval would be required, the Company shall issue to EIS a nonconvertible note substantially in the form of the Note (other than provisions relating to conversion), and the parties hereto shall work together in good faith to agree on an alternative funding mechanism for future borrowings. (C) On each such Note Closing Date, (x) EIS shall fund the requested amount by wire transfer in immediately available funds and (y) the Company shall cause to be delivered to EIS an officers' certificate confirming that the conditions described in clauses (B)(i)(v) above have been satisfied and the Company shall furnish such documents and instruments that EIS shall reasonably request, including updates of the Company documents referred to in Section 1(d)(ii)(I).

Note Purchases. It is estimated that N▇▇▇▇ wi▇▇ ▇▇▇▇ire Newco will require -------------- additional funds to commence development of Newco's products. Within the period commencing on the Initial Closing Date and ending on the third year anniversary of the Initial Closing Date, (the "Development Period"). , EIS and the Company may ------------------ provide to Newco up to an aggregate maximum amount of U.S.$10,000,000U.S.$6,000,000, such funding to be provided by EIS and the Company on a pro rata basis based --- ---- on their respective equity interests, on a fully-diluted basis, in Newco (the "Development Funding") and any and all additional funding to develop Newco's ------------------- products to be provided prior to the exercise of the EIS Exchange Right (as defined in Section 5(c)) by EIS and the Company on a pro rata basis based on --- ---- their respective equity interests, on a fully-diluted basis, in Newco (the "Additional Development Funding"). In order to ensure the Company has funds ------------------------------ available for its share of the Development Funding, EIS EPIL has agreed to advance to the Company up to U.S.$8,010,000 U.S.$4,806,000 subject to the terms and conditions set forth below and in the Note. (A) The Company shall issue to EIS EPIL the Note. The amount of the Note in outstanding on the form attached hereto as Exhibit A-1, and from date hereof is $0.00. From time to time at the request of the Company, EIS EPIL shall make advances thereunder under the Note to the Company (each an "Advance") in an aggregate principal amount of up to U.S.$8,010,000 U.S.$4,806,000 (the "Total ------- ----- Commitment"); provided that the Total Commitment shall be reduced in an amount ---------- -------- equal to amounts funded by the Company to Newco as Development Funding (each a "Development Funding Contribution") for which an Advance was not concurrently requested in respect contributed to -------------------------------- Newco by the Company with funds raised from an independent third party specifically for the purpose of funding the NoteCompany's obligations for Development Funding. The aggregate amount of the Advances made to the Company shall not in any event exceed the amount of Development Funding funded by the Company to Newco (after giving effect to any concurrent Advance Newco, as described above, made under the Note and Development Funding Contribution made by the Company)(the Company) (the "Maximum Amount").. -------------- (B) Each Advance shall be subject to the following terms and conditions: (i) Each Advance shall be made at such time that (x) each Participant (as defined in the JDOA) shall have determined, pursuant to Clause Clauses 6.3 and 6.4 of the JDOA JDOA, that Development Funding shall be provided, (y) Newco shall have provided written notice thereof to EIS and to the Company and (z) the Company shall have delivered a written request to EIS EPIL in the form attached hereto as Exhibit A-2 B-2 (the "Disbursement ----------- ------------ Notice") not less than 10 business days prior to the requested Note Closing ------ Date; (ii) The minimum amount of each Advance shall be not less than $250,000500,000, (or such lesser amount up to the Maximum Amount or the Total Commitment, as the case may be, if the amount that remains available is less than $250,000500,000). The Company shall be entitled to receive up to 4 four Advances in any calendar year; (iii) Each Advance under the Note shall (x) occur only during the Development Period, (y) shall not exceed the Total Commitment and (z) shall not exceed the Maximum Amount; (iv) At the time of each Advance, no material breach or default by the Company under any Transactions Document shall have occurred and be continuing; (v) At the time of each Advance, the representations and warranties of the Company contained in Section 2(a), (b)(ii)(iv), (c), (d), (g), (i), (j), (k), (1) and (m) herein shall be true and correct in all material respects as of the date made and as of the Note Closing Date, except for changes to Section 2(b)(iii), (k)(i) and (iii), and (m) since the date hereof to the extent such changes have not caused a Company Material Adverse Effect (as defined below); and (vi) At the time of any such Advance, EIS and EPIL shall have received any required approvals under the Mergers and Takeovers (Control) Acts 1978-19961996 (Ireland) (the "Mergers Acts"), the Hart▇▇▇▇-Scott▇▇▇▇▇-Rodino ▇▇▇▇▇▇ ------------ Antitrust Improvements Act of 1976, as am▇▇▇▇▇amended (the "HSR Act"), ▇▇▇ ▇▇▇ ▇▇her and any ------- other similar law and or regulation; provided that in the event that EIS has and -------- EPIL have not obtained approval under the Mergers and Takeovers (Control) Acts 1978-1996Acts, the Hart-Scott-Rodino Antitrust Improvements Act of 1976HSR Act, as am▇▇▇▇▇, ▇▇ ▇▇▇ ▇▇▇er or any other similar law or regulation at the time a determination of the necessity of such funding by the Newco Directors and such approval would be required, the Company shall issue to EIS EPIL a nonconvertible non-convertible note substantially in the form of the Note (other than provisions relating to conversion), and the parties hereto shall work together in good faith to agree on an alternative funding mechanism for future borrowings. (C) On each such Note Closing Date, (x) EIS EPIL shall fund the requested amount by wire transfer in immediately available funds and confirm in writing the aggregate principal amount outstanding immediately thereafter and (y) the Company shall cause to be delivered to EIS EPIL an officers' certificate confirming that the conditions described in clauses (B)(i)(vB)(i)-(v) above have been satisfied and the outstanding aggregate principal amount after such wire transfer and the Company shall furnish such documents and instruments that EIS shall reasonably request, including updates of the Company documents referred to in Section 1(d)(ii)(I).