Common use of Second Closing Clause in Contracts

Second Closing. The second closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the transactions contemplated hereby shall be held at the offices of Fenwick & West LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 within one business day following the date on which the last of the conditions set forth in Articles 6 and 7 (including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement (such date, the “Second Closing Date” and together with the Initial Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle amount of the Outstanding Convertible Notes as set forth next to such Investor’s name on Schedule I-B hereto. At the Second Closing, the Company shall deliver to each Investor a single stock certificate representing the number of Shares purchased by such Investor at the Second Closing, as set forth next to such Investor’s name on Schedule I-B hereto, such stock certificate to be registered in the name of such Investor, or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor at the Second Closing. Each Investor agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on Schedule I-B is cancelled as of the Second Closing and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as of the Second Closing Date; provided that to the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as of the Second Closing Date, then the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby.

Second Closing. The second purchase and sale of Notes equal to the remaining portion of the Initial Loan Commitment Amounts and Pro Rata Portions, shall take place at the offices of SNR Xxxxxx US LLP, located at Xxx Xxxxx Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000. Such closing (the “Second Closing” and together with ”), will take place no earlier than March 31, 2011, on not less than 10 days written notice from the Initial Closing, each a “Closing”) Company of its intent to draw such funds. The date of the transactions contemplated hereby shall be held at the offices of Fenwick & West LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 within one business day following the date on which the last of the conditions set forth in Articles 6 and 7 (including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement (such date, Second Closing is referred to herein as the “Second Closing Date.” At the Second Closing the Company shall sell Notes to each (i) Participating Lender in an aggregate principal amount equal to the remaining portion of such Participating Lender’s First Loan Commitment Amount and (ii) Participating Stockholder in an aggregate principal amount equal to the remaining portion of such Participating Stockholder’s Pro Rata Portion, by delivering to each Participating Lender (including each Participating Stockholder) a Note in the face amount indicated next to such Participating Lender’s (and Participating Stockholders’) name on Schedule 1.2 (as amended) together with the Initial Closing Dateother documents referenced in Section 4.1 hereof, each and in exchange therefor such Participating Lender or Participating Stockholder shall make a “Closing Date”)payment at that time, or at such other time and place as by wire transfer payable to the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle principal amount of the Outstanding Convertible Notes as set forth next to such Investor’s name on Schedule I-B hereto. At the Second Closing, the Company shall deliver to each Investor a single stock certificate representing the number of Shares purchased by such Investor at the Second Closing, as set forth next to such Investor’s name on Schedule I-B hereto, such stock certificate to be registered in the name of such Investor, or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor it at the Second Closing. Each Investor agrees that The Notes shall be registered in each such Outstanding Convertible Note Participating Lender’s or Notes held by such Investor and set forth next to such InvestorParticipating Stockholder’s name on Schedule I-B is cancelled or the name of its nominee(s) in such denominations as of such Participating Lender or Participating Stockholder shall request pursuant to instructions delivered to the Second Closing and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as of Company not less than two (2) days prior to the Second Closing Date; provided that to the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as of the Second Closing Date, then the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby.

Second Closing. The second closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the transactions contemplated hereby shall be held at the offices of Fenwick & West LLP, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx 00000 within one business day following the date on which the last of Upon confirmation that the conditions set forth in Articles 6 and 7 to closing specified herein (including the conditions described in other than Section 6(p6.3(e)) have been satisfied or duly waived in accordance with this Agreement (such date, by the “Second Closing Date” and together with the Initial Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle amount of the Outstanding Convertible Notes as set forth next to such Investor’s name on Schedule I-B hereto. At the Second ClosingInvestors, the Company shall deliver to Xxxxxxx Procter LLP, acting in its capacity as escrow agent in connection with the Second Closing (the “Escrow Agent”), to be held in escrow, a certificate or certificates, registered in such name or names as the Investors may designate, representing the Remaining Shares, with instructions that such certificates are to be held for release to the Investors only upon payment in full and release of the Remaining Purchase Price to the Company by all the Investors. Upon receipt of such certificates by the Escrow Agent, each Investor shall promptly, but no more than one Business Day thereafter, cause a single stock certificate wire transfer in same day funds to be sent to the account of the Escrow Agent as instructed in writing by the Escrow Agent, in an amount representing such Investor’s pro rata portion of the number of Shares purchased by such Investor at the Second Closing, Remaining Purchase Price as set forth next on the signature pages to this Agreement (the “Escrow Funds”) (such Investor’s name date that the Escrow Funds are received by the Escrow Agent shall hereafter be referred to as the “Escrow Date”). The Escrow Funds and certificates representing the Remaining Shares shall be held by the Escrow Agent until satisfaction of the condition set forth in Section 6.3(e) hereof. Upon confirmation that the condition set forth in Section 6.3(e) hereof has been satisfied by the Company, the Escrow Agent shall release the Escrow Funds to the Company. On the date (the “Second Closing Date”) the Company receives the Remaining Purchase Price, the certificates evidencing the Remaining Shares shall be released by the Escrow Agent to the Investors. The Second Closing shall take place at the offices of Xxxxxxx Procter LLP, Xxxxxxxx Xxxxx, Xxxxxx, Xxxxxxxxxxxxx 00000, or at such other location and on Schedule I-B heretosuch other date as the Company and a majority in interest of the Investors shall mutually agree. Notwithstanding the foregoing, such stock certificate to be registered in the name of event that the condition set forth in Section 6.3(e) is not satisfied within the time period set forth therein, the Escrow Funds and certificates representing the Remaining Shares shall be returned to each Investor, pursuant to instructions from each such Investor, or in such nominee’s or nominees’ name(s) as designated by such Investor in writing in and the Investor Suitability QuestionnaireCompany, against payment of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor at the Second Closing. Each Investor agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on Schedule I-B is cancelled as of the Second Closing and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as of the Second Closing Date; provided that to the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as of the Second Closing Date, then the Company shall issue a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated herebyrespectively.

Second Closing. The A second closing Closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the transactions contemplated hereby purchase and sale of WinWin Shares shall be held take place at the offices of Fenwick & West LLPXxxxxx Godward llp, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx0xx Xxxxx, Xxxxxxxxxx 00000 within one business day following Xxx Xxxxxxxxx, Xxxxxxxxxx, at 10:00 a.m. Pacific time, at PBT’s sole option, at any time after the Initial Closing Date and on or before the one-year anniversary of the date on which the last of the conditions set forth in Articles 6 and 7 (including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement (such date, the “Second Closing Date” and together with the Initial Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor PBT shall pay purchase, and WinWin shall issue and sell, against delivery of payment therefor, a number of WinWin Shares (the Company “Second Closing WinWin Shares”) such that, following the applicable Total Purchase Price by Exchange issuance of the aggregate principle amount Second Closing WinWin Shares, PBT will hold, at PBT’s option, up to 35% of the Outstanding Convertible Notes as capital stock of WinWin on a fully diluted, as-converted-to-common basis, and WinWin shall authorize its transfer agent to issue to PBT a certificate registered in the name of PBT, representing the Second Closing WinWin Shares and bearing the legend set forth next to such Investor’s name on Schedule I-B heretoin Section 4(x)(vi). At The purchase price for the Second Closing, the Company shall deliver Closing WinWin Shares will be paid by PBT’s delivery to each Investor a single stock certificate representing the number of Shares purchased by such Investor WinWin at the Second Closing, as set forth next at PBT’s option, of (i) cash, (ii) fully paid and nonassessable newly issued shares of PBT’s Series C Preferred Stock (the “Second Closing PBT Shares”), each with a deemed value of $5.00, which shares will have the rights, preferences and privileges accorded to such Investor’s name on Schedule I-B hereto, such stock certificate to be registered shares in the name of such InvestorPBT Charter, or in such nominee’s or nominees’ name(s(iii) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment a combination of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor at the cash and Second ClosingClosing PBT Shares. Each Investor agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on Schedule I-B is cancelled as In advance of the Second Closing the PBT Board of Directors shall have authorized the issuance and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as sale to WinWin of the Second Closing Date; provided that to PBT Shares, and shall have reserved a sufficient number of shares of PBT Common Stock for issuance upon the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as conversion of the Second Closing Date, then PBT Shares. In no event shall the Company shall issue Second Closing occur following the date on which this Agreement has terminated in accordance with Section 13 hereof. The Initial Closing PBT Shares and the Second Closing PBT Shares are referred to collectively as the “PBT Shares.” The Initial Closing and the Second Closing are referred to collectively as the “Closings” and individually as a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby“Closing.”

Second Closing. The second closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the issuance and -------------- sale of Notes, Series A Warrants and Series B Warrants pursuant to Subsection 1.4 hereof and certain of the other transactions contemplated hereby (the "Second Closing") shall be held take place at the offices of Fenwick Xxxxxxx, Procter & West Xxxx LLP, 000 Xxxxxxxxxx XxxxxxExchange Place, Xxxxxxxx XxxxBoston, Xxxxxxxxxx 00000 within one business day following the Massachusetts, on such date on which the last as all of the conditions set forth specified in Articles 6 and 7 (including Subsection 3.1 required to be satisfied at or prior to the conditions described in Section 6(p)) Second Closing shall have been satisfied or waived in accordance with this Agreement by the Principal Purchaser (such datedate on which the Second Closing shall have actually occurred, the “"Second Closing Date” and together "). The Company shall provide the Purchasers with thirty days prior written notice of the Initial proposed Second Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor shall pay the Company the applicable Total Purchase Price by Exchange of the aggregate principle amount of the Outstanding Convertible Notes as set forth next to such Investor’s name on Schedule I-B hereto. At the Second Closing, the Company shall will deliver or cause to be delivered to each Investor Purchaser, a single stock Note in the principal amount specified opposite such Purchaser's name on the signature page hereto, a single Series A Warrant certificate representing to purchase the number of Shares purchased by shares of Common Stock specified opposite such Investor at Purchaser's name on the signature page hereto, and a single Series B Warrant certificate to purchase the number of shares of Common Stock specified opposite such Purchaser's name on the signature page hereto (or such greater number of Notes or Warrant certificates as such Purchaser may request upon four (4) days prior notification), in each case dated the date of the Second Closing, as set forth next to such Investor’s name on Schedule I-B hereto, such stock certificate to be Closing and registered in the such Purchaser's name or (upon four (4) days prior notification) that of such Investor, or in such its nominee’s or nominees’ name(s) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment of the purchase price therefor by in the Exchange of amount specified opposite such Purchaser's name on the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor signature pages hereto. If at the Second Closing. Each Investor agrees that each such Outstanding Convertible Note Closing the Company shall fail to tender to the Purchasers any of the Notes, Series A Warrants or Notes held Series B Warrants to be purchased by such Investor and set forth next the Purchasers as provided in this Subsection 2.2, or if any of the conditions specified in Subsection 3.1 required to such Investor’s name on Schedule I-B is cancelled as of be satisfied at or prior to the Second Closing shall not have been satisfied or waived by the Principal Purchaser at or prior to June 30, 1997 (or such later date as the Principal Purchaser, in its sole discretion, shall consent to in writing), the Purchasers shall, at their election, be relieved of all further obligations under this Agreement, without thereby waiving any other respective rights they may have by reason of such failure or such non-fulfillment. The Company acknowledges and agrees that the Principal Purchaser shall have the absolute right, in its sole discretion, to waive any or all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as of the Second Closing Date; provided that conditions specified in Section 3.1 required to be satisfied at or prior to the extent only a portion Second Closing, and, notwithstanding anything to the contrary set forth herein or in any of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as other Transaction Documents, the Company hereby irrevocably agrees with the Purchasers, that upon the written request of the Second Closing DatePrincipal Purchaser, then the Company shall issue and sell to the Purchasers the Notes and Warrants to be issued and sold to the Purchasers pursuant to this Section 2.2 on such proposed Second Closing Date as the Principal Purchaser shall specify in such request (which proposed Second Closing Date shall be not less than seven (7) Business Days prior to nor more than thirty (30) Business Days after such request is delivered to the Company by the Principal Purchaser). In the event any Purchaser (other than the Principal Purchaser) shall decline (such Purchaser being hereinafter referred to as a new convertible promissory note "Declining Purchaser") to purchase any of the Notes or Warrants to be issued and sold to such Investor reflecting Declining Purchaser at the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect Second Closing pursuant to the Exchange contemplated herebyterms of this Agreement, the Principal Purchaser shall purchase all of the Notes and Warrants that were to have been issued and sold to such Declining Purchaser.

Second Closing. The A second closing Closing (the “Second Closing” and together with the Initial Closing, each a “Closing”) of the transactions contemplated hereby purchase and sale of WinWin Shares shall be held take place at the offices of Fenwick & West LLPCooley Godward llp, 000 Xxxxxxxxxx Xxxxxx, Xxxxxxxx Xxxx0xx Xxxxx, Xxxxxxxxxx 00000 within one business day following Xxx Xxxxxxxxx, Xxxxxxxxxx, at 10:00 a.m. Pacific time, at PBT’s sole option, at any time after the Initial Closing Date and on or before the one-year anniversary of the date on which the last of the conditions set forth in Articles 6 and 7 (including the conditions described in Section 6(p)) have been satisfied or waived in accordance with this Agreement (such date, the “Second Closing Date” and together with the Initial Closing Date, each a “Closing Date”), or at such other time and place as the Company and the Investors mutually agree upon. At the Second Closing, each Investor PBT shall pay purchase, and WinWin shall issue and sell, against delivery of payment therefor, a number of WinWin Shares (the Company “Second Closing WinWin Shares”) such that, following the applicable Total Purchase Price by Exchange issuance of the aggregate principle amount Second Closing WinWin Shares, PBT will hold, at PBT’s option, up to 35% of the Outstanding Convertible Notes as capital stock of WinWin on a fully diluted, as-converted-to-common basis, and WinWin shall authorize its transfer agent to issue to PBT a certificate registered in the name of PBT, representing the Second Closing WinWin Shares and bearing the legend set forth next to such Investor’s name on Schedule I-B heretoin Section 4(x)(vi). At The purchase price for the Second Closing, the Company shall deliver Closing WinWin Shares will be paid by PBT’s delivery to each Investor a single stock certificate representing the number of Shares purchased by such Investor WinWin at the Second Closing, as set forth next at PBT’s option, of (i) cash, (ii) fully paid and nonassessable newly issued shares of PBT’s Series C Preferred Stock (the “Second Closing PBT Shares”), each with a deemed value of $5.00, which shares will have the rights, preferences and privileges accorded to such Investor’s name on Schedule I-B hereto, such stock certificate to be registered shares in the name of such InvestorPBT Charter, or in such nominee’s or nominees’ name(s(iii) as designated by such Investor in writing in the Investor Suitability Questionnaire, against payment a combination of the purchase price therefor by the Exchange of the aggregate principle amount of the Outstanding Convertible Notes being Exchanged by such applicable Investor at the cash and Second ClosingClosing PBT Shares. Each Investor agrees that each such Outstanding Convertible Note or Notes held by such Investor and set forth next to such Investor’s name on Schedule I-B is cancelled as In advance of the Second Closing the PBT Board of Directors shall have authorized the issuance and all principal and interest outstanding thereunder shall be Exchanged as reflected on Schedule I-B as sale to WinWin of the Second Closing Date; provided that to PBT Shares, and shall have reserved a sufficient number of shares of PBT Common Stock for issuance upon the extent only a portion of the principal and interest outstanding thereunder shall be converted or exchanged as reflected on Schedule I-B as conversion of the Second Closing Date, then PBT Shares. In no event shall the Company shall issue Second Closing occur following the date on which this Agreement has terminated in accordance with Section 13 hereof. The Initial Closing PBT Shares and the Second Closing PBT Shares are referred to collectively as the “PBT Shares.” The Initial Closing and the Second Closing are referred to collectively as the “Closings” and individually as a new convertible promissory note to such Investor reflecting the remaining principal and interest outstanding under such Outstanding Convertible Note or Notes after giving effect to the Exchange contemplated hereby“Closing.”