Common use of Second Closing Clause in Contracts

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the “Second Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “Second Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the “"Second Closing”") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Malizia M▇▇▇▇▇▇ Spidi & FiF▇▇▇▇, PC located at 1▇▇ located ▇▇ ▇▇27 25th Street▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “"Second Closing Date.”" (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 16,942 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors each Investor of its pro rata share of $22,458,000 16,942,000 (the “"Second Purchase Price” " and together with the Initial Purchase Price, the “"Purchase Price”") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “"Conversion Shares”") would cause an Investor the Investors or its their Affiliates to be deemed for purposes of the BHC Act to own 2510% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor the Investors will not be deemed for purposes of the BHC Act to own 2510% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1a) Subject to the satisfaction (orterms of this Agreement, where permissible, waiver) the closing of the conditions to closing set forth in Section 1.2(d), purchase and sale of the second closing Second Closing Securities (the “Second Closing”) shall take place remotely via the exchange of documents and signatures at a time and date as such place, orally or in writing, (i) in the event the Company shall be agreed upon consummate the transactions contemplated by the parties heretoMerger Agreement (including without limitation the closing of the Mergers), but in no event later than upon the tenth business day after earlier of (x) the date of satisfaction or waiver the closing of the last first public offering (the “Follow-On Offering”) of Pubco following the closing of the conditions specified Mergers, and (y) the one hundred and thirty-fifth (135th) day following the Merger Closing Date (or, if such one hundred and thirty-fifth (135th) day is not a business day, then on the first business day following such one hundred and thirty-fifth (135th) day); or (ii) in Section 1.2(d)the event of the termination of the Merger Agreement, at on the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by tenth (10th) business day following the parties in writing. The date of the Second Closing is referred to as the “Second Closing Datesuch termination.” (2b) Subject to the satisfaction of the conditions described in Section 1.2(d), at At the Second Closing, the Company or Pubco, as applicable, will deliver sell and issue to each of the Purchasers, and each of the Purchasers will purchase: (i) in the event the Second Closing occurs pursuant to Section 1.4(a)(i)(x) above, each Purchaser hereby commits to purchase, as a participant in a concurrent private placement and pursuant to the Investors certificates bearing same terms and at the appropriate legends herein provided for and free and clear same price of all Liens representing the Follow-On Offering, a number of Pubco Shares equal to (x) the dollar amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto divided by (y) the public offering price per share (before any underwriting discount) set forth on the cover of the final prospectus used in connection with the Follow-On Offering; (ii) in the event that the Second Closing occurs pursuant to Section 1.4(a)(i)(y) above, a number of Pubco Shares equal to (x) the dollar amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto divided by (y) the greater of (1) an aggregate 22,458 amount equal to ninety million dollars ($90,000,000) divided by the total number of shares of Series B Preferred Stock to be allocated among outstanding on the Investors as they shall determine in their sole discretion and as provided third business day prior to the Company in writing date of such Closing and (2) the Average VWAP per share of common stock of Pubco during the thirty (30) day period ending on the third business day prior to the date of such Closing; or (iii) in the event that the Second Closing occurs pursuant to Section 1.4(a)(ii) above, Second Closing Notes with a principal face amount equal to the dollar amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto. (c) At the Second Closing, in the event it occurs pursuant to Section 1.4(a)(ii) above, the Company shall deliver to each Purchaser a Note representing the principal face amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto, against payment of the purchase price therefor by (x) check payable to the Investors of $22,458,000 Company, (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”y) by wire transfer of immediately available United States funds to a the bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares , or (z) any combination of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesmethods.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the “The Second Closing”) shall take place at a time and date as Closing shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), held at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇ & ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writingLLP, New York, New York. The Second Closing shall occur on the later to occur of the date of the First Closing and the date of the consummation of the transactions contemplated by the underwriting agreement relating to the Public Offering. (a) The obligation of the Investor to purchase the Common Stock (or Member Interests if the Company remains a limited liability company at the time of the Second Closing) to be purchased by it from the Company at the Second Closing is referred shall be subject to as satisfaction, or waiver by the “Second Closing Date.”Investor, of the following conditions: (2i) Subject Issuance of Common Stock. Concurrently with such purchase, in the event the Company has converted to a corporation, the Company shall have duly issued to the satisfaction Investor such number of shares of Common Stock which would represent the Equity Equivalent of the conditions described remaining 7.5% Member Interest determined on a Pro Forma Equity Basis, as provided in Section 1.2(d)2.1; provided, however, that, notwithstanding the foregoing, in the event that the IPO Price is less than NTT's Per Share Price, then and in such event, the Investor shall receive such additional number of shares of Common Stock in consideration for such $60,000,000 such that NTT's Per Share Price equals the IPO Price. In the event that the Company remains a limited liability company at the time of the Second Closing, then concurrently with the Second Closing, the Company will deliver shall issue to the Investors certificates bearing Investor (and duly amend its Amended Operating Agreement to reflect the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock purchase by the Investor of) a 7.5% Member Interest determined on a Pro Forma Equity Basis, subject to be allocated among the Investors as they shall determine in their sole discretion and same adjustment as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account in connection with the appropriate regulatory treatment issuance of convertible securitiesCommon Stock. (ii) [intentionally omitted]

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the “"Second Closing”") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fi▇▇▇Skadden, ▇▇ located ▇▇ ▇▇27 25th StreetArps, ▇.▇.Slate, M▇▇▇▇▇▇ & F▇▇▇ LLP located at 4 ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te , or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “"Second Closing Date.”" (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 42,626 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors Investor of $22,458,000 42,626,000 (the “"Second Purchase Price” " and together with the Initial Purchase Price, the “"Purchase Price”") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “"Conversion Shares”") would cause an the Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such the Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) The obligation of the conditions Company to closing set forth in Section 1.2(d)issue, the second closing (the “Second Closing”) shall take place at a time sell and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “Second Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (at the “Conversion Shares”) would cause an Investor or its Affiliates Second Closing is subject to be deemed for purposes the fulfillment to the reasonable satisfaction of the BHC Act Company at or prior to own 25% or more the Second Closing of the following conditions: (a) The Second Closing Investors shall have delivered the Second Purchase Price in accordance with Section 2.4(b); (b) Each Second Closing Investor shall have delivered its executed counterpart signature page to this Agreement; (c) The Amended and Restated Shareholders Agreement, duly executed by the New Series B Investors and the holders of at least a majority of the outstanding shares of Common Stock on a fully-diluted basis, including a majority of the Series A Preferred Stock voting as a separate class and on a fully-diluted and as converted basis; (d) The First Amendment to Registration Rights Agreement, duly executed by a majority of the holders of Registrable Securities (as defined the Original Registration Rights Agreement); (e) Each of the representations and warranties of the Investors contained in Article VIII shall be true, correct and complete in all material respects on and as of the Second Closing Date as though then made, except for such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified. (f) Section 7.4(a) of the Series A Preferred Stock Purchase Agreement shall be amended to read in its entirety as follows: (a) (i) As of the First Closing, the authorized capital stock of the Company consisted solely of (1) ten million (10,000,000) shares of Common Stock, of which 1,696,284 shares were issued and outstanding; and (2) three million (3,000,000) shares of preferred stock, $.0001 par value per share, of which 2,250,000 shares had been designated as Series A Preferred Stock and 962,101 shares were issued and outstanding. The Company had reserved for issuance (x) sufficient shares of Common Stock for issuance upon conversion or redemption of all outstanding or authorized Series A Preferred Shares and (y) 2,100,000 shares of Common Stock upon exercise of options pursuant to its 2004 Stock Option Incentive Plan. Immediately after the First Closing, the capitalization of the Company was as set forth in the Capitalization Schedule attached to Schedule 7.4, which Capitalization Schedule and Schedule 7.4 (A) reflected the capitalization of the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the exercise of all outstanding options and warrants and all options reserved for future grant under any class stock option plans and (B) set forth (I) each outstanding option, warrant or other right to purchase shares of voting securities capital stock of the Company or to otherwise control any of its Subsidiaries and (II) for each such option, warrant or right, the Companyholder thereof, then the date of grant, the exercise price and the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiessubject thereto.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) The Second Closing of the conditions to closing set forth in Section 1.2(d), purchase and sale of the second closing Shares and Warrants (the “"Second Closing”") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fithe Securities Purchase Agreement Company, on or before January 31, 2000, or such earlier date on which the conditions set forth in Section 7(b) and 8(b) hereof shall have been satisfied or waived, provided that: (i) Purchasers participating in the Second Closing shall only include (A) Klein-Hawk ("Klein-Hawk"), (B) Ravinia Capital Ventures, LLC (whic▇ ▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., y ▇▇▇▇▇▇▇▇▇▇e in the Second Closing in its corporate capacity) ("Ravinia"); (C) those note holders listed on Schedule 3(y) attached hereto (the "Second Closing Note Holders"), ▇.▇. and (D) those Purchaser listed on Schedule 1 attached hereto who did not participate in the First Closing; notwithstanding the foregoing, Purchasers listed on Schedule 1 may only participate in the Second Closing in the amount set forth next to each such Purchaser's names on Schedule 1; (ii) the aggregate investment made by the Purchasers participating in the Second Closing shall not exceed, in the case of (A) Klein-Hawk, $4,000,000, (B) Ravinia, $3,000,000, (C) the Second ▇▇▇▇▇, ▇▇ ▇ote Holders, $765,000 and (D) any other Purchaser listed on Schedule 1 attached hereto who did not participate in the First Closing, $1,025,500; provided, however, Klein-Hawk may only participate in the Second Closing if its aggreg▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed ment is at least $2,000,000, and provided, further, Ravinia may only participate in the Second Closing if its aggregate investment is at least $2,000,000; and (iii) Purchasers participating in the Second Closing shall become a party to and agree to be bound by the parties in writingprovisions of this Agreement and each other Transaction Documents (as defined below). The date of the Second Closing is shall be hereinafter referred to as the “"Second Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(d)", at the Second Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing Date and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced Date are each referred to individually as a "Closing Date" and, collectively as the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities"Closing Dates".

Second Closing. (1) Subject Upon the terms and subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d)this Agreement, the second closing (the “Second Closing”Closing ) shall take place at a time and date within five (5) days following the Milestone Target Payment Date applicable to Milestone 1 (as shall be agreed defined in the Joint Development Agreement) upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “Second Closing Date.” (2) Subject to the satisfaction of the conditions described set forth in Section 1.2(d5.2 and Section 6.2 applicable to the Second Closing (or such other time and place as the Parties may agree) (the Second Closing Date ). At the Second Closing, the following shall occur: (a) in the event the Purchaser elects to purchase Series B Preferred at the Second Closing, the Purchaser shall deliver to the Company an amount in United States dollars ( U.S. Dollars ) in immediately available funds that is not greater than the Maximum Total Series B Investment (such actual amount being the Second Closing Payment ), and, in exchange therefor, the Company shall issue and sell to the Purchaser, and the Purchaser shall accept (subject to Section 1.9), a number of shares of Series B-1 Preferred equal to (x) the Second Closing Payment divided by (y) the Series B-1 Purchase Price (as defined in the Series B Certificate of Designations); (b) in the event the Purchaser elects to pay to the Company the Second Closing Payment specified above, the Company shall execute and deliver a warrant substantially in the form of Exhibit G hereto (the Warrant ) in favor of the Purchaser, convertible into such number of shares of Common Stock equal to 25% of the number of shares of Common Stock into which the Series B-1 Preferred purchased pursuant to Section 1.2(a) above are convertible on the date of issuance of the Series B-1 Preferred; (c) provided that the Purchaser makes the Minimum Series B Investment at the Second Closing, the Company will deliver shall issue to the Investors certificates bearing Purchaser, and the appropriate legends herein provided for Purchaser may choose to accept (at its sole discretion, subject to Section 1.8 and free and clear Section 1.9), such number of all Liens representing an aggregate 22,458 shares of Series B A-1 Preferred Stock to be allocated among that equal, when combined with such number of the Investors as they shall determine in their sole discretion Series B-1 Preferred and as provided Warrants, if any, purchased by the Purchaser at the Second Closing up to the Minimum Series B Investment, a 4% Ownership Interest. For purposes of clarity, in the event that the Purchaser elects to invest more than the Minimum Series B Investment at the Second Closing, only such number of Series B-1 Preferred and Warrants as would have been purchased with the Minimum Series B Investment shall be counted in determining the 4% Ownership Interest. Notwithstanding the foregoing, the Company shall issue to the Purchaser a number of shares of Series A-1 Preferred with a Series A Liquidation Value equal to at least $1,250,000, regardless of whether such number of shares results in writing the Purchaser acquiring greater than a 4% Ownership Interest at the Second Closing (but in no event shall Purchaser acquire greater than a 10% Ownership Interest at the Second Closing, without regard to the Ownership Interest acquired by Purchaser at any prior Closing), provided, however, that, in the event the Purchaser does not elect to pay the Company at least the Minimum Series B Investment at the Second Closing, the Company shall issue to the Purchaser, and the Purchaser shall be entitled to receive, only the greater of (i) a number of shares of Series A-1 Preferred equal to a 2% Ownership Interest, and (ii) a number of shares of Series A-1 Preferred with a Series A Liquidation Value equal to $625,000, but not in any event to exceed a maximum 2% Ownership Interest; (d) the Company shall deliver an Opinion of Counsel applicable to the Second Closing, against payment by ; (e) updated Schedules to this Agreement (which update of the Investors representations and warranties shall reflect that a Material Adverse Effect has not occurred since the prior Closing); (f) the President of $22,458,000 the Company shall deliver to the Purchaser a certificate certifying that the conditions specified in Section 5.2(a) and Section 5.2(b) applicable to the Second Closing have been fulfilled; (g) the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer Company shall reserve a sufficient number of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon to account for the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more all of the outstanding shares Preferred Shares plus the exercise of any class of voting securities all of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at outstanding Warrants (taking into account the Second Closing shall be reduced to and including any Deferred Securities under Section 1.8 and Excess Shares under Section 1.9); and (h) the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (Company and the Second Purchase Price Purchaser shall execute and deliver any other documents and agreements necessary or desirable to accomplish the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesforegoing.

Second Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) of the terms and conditions to closing set forth in Section 1.2(d)this Agreement, at the second closing (Second Closing the “Company shall issue and sell to Investor, and Investor shall purchase from the Company, a Note and a Warrant. The Second Closing”) Closing shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇. ▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of at 10:30 a.m. (New York City time) on the Second Closing is referred to Date or at such other location or time as the “Second Closing Dateparties may agree.” (2b) Subject to the satisfaction of the conditions described in Section 1.2(d), at At the Second Closing, the Company will shall deliver or cause to be delivered to Investor the Investors certificates bearing following (the appropriate legends herein provided for and free and clear “Company Deliverables”): (i) Note in the aggregate principal amount of all Liens representing an aggregate 22,458 $862,500, minus the up-front interest charge of $112,500, resulting in a net principal amount of $750,000, registered in the name of Investor; and (ii) Warrant, registered in the name of Investor, pursuant to which Investor shall have the right to acquire the number of shares of Series B Preferred Common Stock equal to 50% of the Underlying Shares issuable upon an assumed conversion of the Note issuable to Investor in accordance with Section 2.2(b)(i) (without regard to any conversion restrictions contained thereunder), at the price of the Company’s next registered offering, provided, however, that if no such offering closes by the six month anniversary of the Second Closing Date, then the Warrant Shares of the Warrant shall be allocated among equal to 50% of the Investors as they shall determine Underlying Shares issuable upon an assumed conversion of the Note issuable to Investor in their sole discretion and as provided to accordance with Section 2.2(b)(i) at the Company closing price of the Common Stock on the six month anniversary of the Second Closing Date. If the six month anniversary of the Second Closing Date occurs on a day in writing prior to which the shares are not being traded, then the Warrant Shares will be determined using the closing price of the Common Stock on the next Trading Day. (c) At the Second Closing, against payment Investor shall deliver or cause to be delivered to the Company $750,000, in United States dollars and in immediately available funds, by wire transfer to an account designated in writing by the Investors of $22,458,000 Company for such purpose (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase PriceInvestor Deliverables”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities).

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the “Second Closing”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia M▇▇▇▇▇▇ Spidi & FiF▇▇▇▇, PC located at 1▇▇ located ▇▇ ▇▇27 25th Street▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the “Second Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to On the satisfaction (orSecond Closing Date, where permissible, waiver) substantially concurrent with the execution and delivery of the conditions to closing set forth in Section 1.2(d), the second closing (the “Second Closing”) shall take place at a time and date as shall be agreed upon this Agreement by the parties hereto, but the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of up to $[___ million of Class A Units or Class B Units as calculated pursuant to Section 2.2(a). The Second Closing shall occur on, or as soon as reasonably practicable following, and in no any event later than the tenth business day after within 5 Trading days of, the date on which, Shareholder Approval is deemed obtained and effective. Notwithstanding anything herein to the contrary, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of satisfaction or waiver such Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the last Ordinary Shares to exceed 4.99% (or, at the election of the conditions specified Purchaser, 9.99%) of the outstanding Ordinary Shares, such Purchaser may elect to purchase Class B Units in lieu of Class A Units as determined pursuant to Section 2.2(a); provided, however, that, in the event that a Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed 19.99% of the outstanding Ordinary Shares, in lieu of Ordinary Shares in excess of such amount, such Purchaser shall be issued Class B Units as determined pursuant to Section 2.2(a). Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the Company. The Company shall deliver to each Purchaser its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Company and each Purchaser shall deliver the other items set forth in Section 1.2(d)2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing shall occur at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te the Placement Agent or such other location as agreed the parties shall mutually agree. Unless otherwise directed by the parties in writing. The date Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Second Closing is referred to as the “Second Closing Date.” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the Investors certificates bearing account(s) at the appropriate legends herein provided for Placement Agent identified by each Purchaser; upon receipt of such Shares, the Placement Agent shall promptly deliver electronically such Shares and free the Warrants in physical form to the applicable Purchaser, and clear payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer to the Company). The Company covenants that, if the Purchaser delivers a Notice of all Liens representing an aggregate 22,458 shares of Exercise (as defined in the Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing Warrants) at least one (1) Trading Day prior to the Second Closing, against payment by Closing Date to exercise any Series B Warrants between the Investors of $22,458,000 (date hereof and the “Second Purchase Price” and together with the Initial Purchase PriceClosing Date, the “Purchase Price”) by wire transfer of immediately available United States funds Company shall deliver Ordinary Shares with respect to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (Warrants to the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at Purchaser on the Second Closing shall be reduced to the highest number Date in connection with such Notice of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesExercise.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) 4.2.1 The closing of the conditions to closing set forth in Section 1.2(d)issuance by the Company, and acquisition/purchase by the second closing Purchasers, of the Preferred Shares and Additional Preferred Shares hereunder (the “Second "SECOND Closing”") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), (a) at the offices of Malizia Spidi Brow▇▇▇▇▇▇ ▇▇▇t▇ & Fi▇arb▇▇, ▇.C., 410 ▇▇▇▇ ▇▇▇▇▇▇, ▇▇ located ▇▇▇▇ ▇▇27 25th Street▇▇, ▇.▇.▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te the forty-sixth (46th) day immediately following the FCC Approval Date, provided that all of the conditions to the Second Closing, as set forth in Section 9 below, have been fully satisfied as of that date (or location as agreed one or more such conditions have been waived by the parties in writing. The date Purchasers and/or the Company, as the case may be) or, if all of such conditions to the Second Closing is referred to have not been satisfied (or waived, as the “Second Closing Date.” case may be) by such forty-sixth (246th) Subject day, then on the first day thereafter that all of such conditions have been fully satisfied (or waived as the case may be) or (b) at such other place and time as may be mutually agreeable to the satisfaction of Company and the conditions described in Section 1.2(d), at Purchasers. At the Second Closing, the Company will shall deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock each Purchaser (other than a Purchaser that has timely delivered a Notice Not to be allocated among the Investors as they shall determine in their sole discretion and as provided Close to the Company Company) stock certificates evidencing the Preferred Shares and Additional Preferred Shares it is acquiring hereunder (in writing prior each case in the number set forth opposite each Purchaser's name on SCHEDULE II hereto) upon receipt (a) from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Second Closing, against Company) of its Note (for which the Preferred Shares are being issued pursuant to the Note Conversion procedures set forth in Section 5.4 below) marked "Paid In Full" and (b) payment from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Company) of the aggregate purchase price for its Additional Preferred Shares (as set forth on SCHEDULE II hereto) by the Investors of $22,458,000 (the “Second Purchase Price” and together with the Initial Purchase Price, the “Purchase Price”) a cashier's or certified check or by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if 's account at Norwest Bank of Colorado, ABA #1020▇▇▇▇▇, ▇▇count #1078▇▇▇▇▇▇, ▇▇ntact: Paul ▇▇▇▇▇▇▇▇. ▇▇ch stock certificate evidencing the Common Preferred Shares and Additional Preferred Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares to each Purchaser (the “Conversion Shares”) would cause an Investor or its Affiliates other than a Purchaser that has timely delivered a Notice Not to be deemed for purposes of the BHC Act Close to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company), then the number of Series B Preferred Shares upon issuance to be purchased at the Second Closing thereof, shall be reduced to duly executed by an authorized officer or officers, as the highest number case may be, of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that such Investor will not be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under Notwithstanding anything herein to the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.contrary, any Purchaser that timely delivers a Notice Not

Second Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) The Closing of the conditions to closing sale and purchase of the Shares as set forth in Section 1.2(d), on Exhibit A under the second closing heading "Second Closing" (the “"Second Closing”") -------------- shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), at the offices of Malizia Spidi & Fi▇▇▇, ▇▇ located ▇▇ ▇▇27 25th Street, ▇.▇., a Handler ▇▇▇▇▇▇▇▇ ▇▇▇, ▇.▇. ▇ Landau & ▇▇▇▇▇▇, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, within thirty (30) days after the Second Closing is Conditions (as defined below) are met (the "Second Closing -------------- Date"). The First Closing and the Second Closing are sometimes referred to ---- hereinafter collectively as the “Second Closing Date.” (2) Subject "Closings" and individually as a "Closing". The -------- ------- parties hereto acknowledge that the price per Share to be paid by the satisfaction of the conditions described in Section 1.2(d), Purchasers at the Second Closing, the Company will deliver to the Investors certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by the Investors of $22,458,000 Closing (the “"Second Purchase Closing Price” and together with the Initial Purchase Price, the “Purchase Price”") shall be $15,000,000 divided by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that (4,595,066+a) if the Common Purchasers reasonably determine that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have been fulfilled --------- within 90 days after the First Closing and $12,000,000 divided by (4,595,066+x) per Share if the Purchasers reasonably determine that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have been fulfilled 90 days or more --------- after the First Closing. As used in the preceding sentence, 'x' equals the number of Shares issued sold at the First Closing. Thus, if 540,541 Shares are sold at the First Closing and the shares of Common Stock issuable upon milestone conditions set forth on Exhibit C are --------- fulfilled within 90 days after the conversion of First Closing, the Series B Preferred Shares (price per Share payable by the “Conversion Shares”) would cause an Investor or its Affiliates to be deemed for purposes of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased Purchasers at the Second Closing shall be reduced $2.92 per Share. (a) The obligation of the Purchasers to purchase Shares at the Second Closing is conditioned upon fulfillment of the milestone conditions set forth on Exhibit C hereto (the "Second Closing Conditions"). At the Second Closing, the --------- ---------------------------- Company will deliver to each of the Purchasers a certificate for the number of shares being purchased by such Purchaser, registered in the name of such Purchaser, against payment to the highest number Company of Series B Preferred Shares at a the purchase price per share of $1,000 (and therefor, by wire transfer, check, or other method acceptable to the Company. If at the Second Purchase Price Closing any of the conditions specified in Section 7 shall not have been fulfilled, each of the Purchasers shall, at his or its election, be relieved of all of his or its obligations under this Agreement without thereby waiving any of the rights he or it may have by reason of such failure or such non- fulfillment. (c) Notwithstanding the provisions of Sections 2.2(a) and (a) above, upon a reasonable determination by the Purchase Price Purchasers prior to December 31, 1989 that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have --------- been fulfilled, the Purchasers shall deposit with ▇▇▇▇ and ▇▇▇▇ ("Escrow Agent") ------------ the amount of the purchase price set forth on Exhibit A under the heading --------- "Second Closing." Such amount shall be reduced accordinglyheld by Escrow Agent pursuant to the terms of an Escrow Agreement in the form of Exhibit D until the earlier of (a) such that such Investor will not be deemed for purposes --------- receipt by Escrow Agent of the BHC Act to own 25% or more of the outstanding shares of any class of voting securities a notice signed on behalf of the Company and each Purchaser that the milestone condition set forth as paragraph 3 of Exhibit C has --------- been fulfilled (the "Confirmation Notice"), or (ii) June 30, 1990. If the ------------------- Escrow Agent receives the Confirmation Notice prior to otherwise control June 30, 1990, the Escrow Agent shall pay such escrowed amount, plus all interest earned thereon, to the Company. Any determinations under If the proviso Escrow Agent does not receive the Confirmation Notice prior to June 30, 1990, the Escrow Agent shall pay such escrowed amount, plus all interest earned thereon, to the Purchasers and all obligations of the immediately preceding sentence Purchasers with respect to the Second Closing shall take into account cease. (a) Notwithstanding the appropriate regulatory treatment provisions of convertible securitiesSection 2.2(a), affiliates of GenAm (U.S.), Inc., Advent International Corporation, a Venture Capital Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Associates or Ventures West Management III, Ltd. shall have the right to purchase Shares at the First Closing Price and shall be deemed to have purchased such Shares at the First Closing, if such Shares are purchased within thirty (30) days after the First Closing. The parties hereto acknowledge that the Company shall have the right prior to December 31, 1989 to issue and sell Shares to entities who are not parties to this Agreement, which such entities shall be entitled to all of the rights of Purchasers hereunder, provided that the purchase of Shares by such entities is approved by at least two-thirds (2/3) of the Purchasers, that such entities pay the Second Closing Price for such Shares and that such entities agree to be bound by all of the obligations of Purchasers hereunder.