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), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, 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 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $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 the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% 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 the Investors will not be deemed for purposes of the BHC Act to own 10% 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, by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate on the First Closing, to tenth (10th) business day following the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, 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 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 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 same terms and at the same price of 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 amount equal to ninety million dollars ($90,000,000) divided by the total number of shares outstanding on the third business day prior to the 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 Investors one or more certificates bearing principal face amount set forth opposite such Purchaser’s name under the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock heading “Remaining Commitment” on Exhibit A-1 hereto, against payment of the purchase price therefor by each Investor of its pro rata share of $16,942,000 (x) check payable to the "Second Purchase Price" and together with the Initial Purchase PriceCompany, 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 the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% 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 the Investors will not be deemed for purposes of the BHC Act to own 10% 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 "“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), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of M▇▇▇▇▇▇ Malizia Spidi & F▇Fi▇▇▇, PC ▇▇ located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇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 one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 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 each Investor of its pro rata share the Investors of $16,942,000 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 the Investors an Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% 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 the Investors such Investor will not be deemed for purposes of the BHC Act to own 1025% 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 terms and conditions to closing set forth in Section 1.2(d)4.2 and elsewhere in this Agreement, the second closing and sale of an additional $2,000,000 aggregate principal amount of Debentures and Warrants for an aggregate of 511,182 shares of Common Stock (the "Second Closing") shall take place at on a time and date as shall be agreed upon by mutually acceptable to the parties hereto, in the same manner as the First Closing but in no event later than the tenth ten (10) business day days after the date of satisfaction or waiver release of the last of Company's earnings for the conditions specified in Section 1.2(d)fiscal quarter ended September 30, by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as 1999 (the "Second Closing Date." (2) Subject to ); provided, that in no case shall the satisfaction of Second Closing take place unless and until the conditions described listed in Section 1.2(d)4.2 have been satisfied or waived by the appropriate party; provided, further, that if a Change of Control shall have occurred, the Company shall not be obligated to sell more than $1,000,000 aggregate principal amount of Debentures and Warrants at the Second Closing. At the Second Closing: (i) Each Purchaser shall deliver, as directed by the Company will deliver Company, its portion of the purchase price as set forth next to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 name on a schedule similar to Schedule I (the "Second Purchase Price" and together with Closing Schedule"), to be delivered to the Initial Purchase PriceCompany by the Purchasers two (2) days before the Second Closing Date, the "Purchase Price") by wire transfer of in United States dollars in immediately available United States funds to a bank an account or accounts designated in writing by the Company; provided ; (ii) The Company shall deliver a Debenture, substantially in the form of Exhibit A hereto, except that if Section 4.2(b) thereof shall be omitted, with a Conversion Price (as defined therein) equal to $3.9125, representing 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 the Investors or their Affiliates principal amount purchased by each Purchaser as set forth next to be deemed for purposes of the BHC Act to own 10% 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 such Purchaser's name on the Second Closing Schedule, registered in the name of such Purchaser; (iii) The Company shall be reduced deliver a Warrant(s), substantially in the form of Exhibit B hereto and with the Exercise Price (as defined therein) equal to $4.499375, representing the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and Warrant(s) being purchased by each Purchaser as set forth next to such Purchaser's name on the Second Purchase Price Closing Schedule, registered in the name of such Purchaser; and (iv) The parties shall execute and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes deliver each of the BHC Act documents referred to own 10% 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 securitiesin Section 4.2.

Second Closing. (1a) Subject to On the satisfaction (orterms and conditions of this Agreement, where permissible, waiver) the closing of the Additional Investment (the “Second Closing,” and, together with the Initial Closing, each a “Closing”) shall occur at 10:00 am New York City time on the fifteenth (15th) Business Day (or such earlier date as the Purchaser may notify the Company in writing on at least two Business Days’ notice) following the first Business Day during the Request Period, if any, during which the conditions to closing precedent set forth in Section 1.2(d), the second closing (the "Second Closing"2.03(c) shall take place at a time and date as shall be agreed upon are satisfied or waived by the parties hereto, but in no event later applicable party (other than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d)that, by delivery by facsimile of any documents required to their nature, will be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, 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), satisfied at the Second Closing), via the remote electronic exchange of documents or at such other time as shall be mutually agreed, in writing, between the Company will and Purchaser (such date is referred to herein as the “Second Closing Date,” and, together with the Initial Closing Date, each a “Closing Date”). (b) At the Second Closing: (i) the Company shall deliver to the Investors one or more certificates bearing Purchaser (1) the appropriate legends herein provided for Additional Securities purchased by it pursuant to Section 2.01(b) in book-entry form (in the case of Series A-1 Preferred Stock) and registered in the name of the Purchaser, in each case free and clear of all Liens representing 16,942 shares Liens, except restrictions on transfer imposed by the Company Charter Documents, Section 5.06 and any applicable securities Laws, and record the Purchaser as the owner of Series B Preferred Stock against payment such Additional Securities on the books and records of the Company, and (2) the Additional Warrants duly executed by each Investor of its pro rata share of $16,942,000 the Company; and (ii) the "Second Purchase Price" and together with Purchaser shall (1) pay the Initial Purchase PriceAdditional Investment Amount to the Company, the "Purchase Price") by wire transfer of in immediately available United States funds U.S. federal funds, to a bank the account designated by the Company; provided that if Company in writing and (2) deliver to the Common Shares issued at Company the First Closing Additional Warrants, duly executed by the Purchaser. (c) The obligation of the Purchaser and, with respect to clause (iii) of this Section 2.03(c), each of the Purchaser and the Company, to consummate the Second Closing is subject to (i) during the Request Period, the Company’s delivery of a written notice (the “Additional Investment Request”) that it has determined to repurchase shares of Common Stock issuable upon the conversion of the Series B Preferred Shares from one (the "Conversion Shares"and not more than one) would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities stockholder of the Company (excluding any directors or to otherwise control executive officers of the Company, then Permitted Holders (as defined in the number New Credit Agreement) and any Affiliates of Series B Preferred Shares the foregoing) in an amount not to be purchased at exceed ten (10) million shares of Common Stock in the Second Closing shall be reduced to the highest number of Series B Preferred Shares at aggregate for a purchase price per share of Common Stock not to exceed the lower of (A) $1,000 2.00 and (B) 125% multiplied by the Market Price Per Share (any transaction satisfying such requirements, a “Permitted Repurchase Transaction” and the aggregate purchase price for all shares of Common Stock to be repurchased pursuant thereto, in no event to exceed twenty million dollars ($20,000,000), the “Additional Investment Amount”), (ii) any and all proceeds from the Additional Investment being used solely to pay the purchase price of the Permitted Repurchase Transaction, (iii) no Governmental Authority of competent jurisdiction having issued any order, decree, ruling or injunction permanently restraining, enjoining or otherwise prohibiting the consummation of the Additional Investment and (iv) the Company having performed in all material respects all obligations, agreements and covenants required to be performed by it under this Agreement and any Transaction Document on or before the Second Purchase Price and the Purchase Price Closing Date. (d) The Company shall be reduced accordinglyentitled to make no more than one (1) such that Additional Investment Request during the Investors will Request Period. For the avoidance of doubt, the Second Closing shall not be deemed for purposes occur at any time after the end of the BHC Act to own 10% or more Request Period without the prior written approval 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 securitiesPurchaser (which may be granted in its sole discretion).

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 (a) 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), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of MBrow▇▇▇▇▇▇ Spidi & F▇▇▇t▇ & ▇arb▇▇, PC located at 1▇▇▇ .C., 410 ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇ ▇▇▇▇▇, ▇▇ 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 one or more such other date or location as agreed 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 each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Investors one or more Company) stock certificates bearing evidencing the appropriate legends herein provided for Preferred Shares and free and clear of all Liens representing 16,942 shares of Series B Additional Preferred Stock against payment by Shares it is acquiring hereunder (in each Investor 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 Company) of its pro rata share of $16,942,000 Note (for which the Preferred Shares are being issued pursuant to the Note Conversion procedures set forth in Section 5.4 below) marked "Second Purchase PricePaid In Full" and together with (b) payment from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Initial Purchase Price, Company) of the "Purchase Price"aggregate purchase price for its Additional Preferred Shares (as set forth on SCHEDULE II hereto) by 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 the Investors or their Affiliates other than a Purchaser that has timely delivered a Notice Not to be deemed for purposes of the BHC Act Close to own 10% 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 the Investors will not be deemed for purposes of the BHC Act to own 10% 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