Subsequent Closing Clause Samples

Subsequent Closing. Following the initial Closing, the Company may sell additional notes (the “Additional Notes”) and additional warrants (the “Additional Warrants”) to the same or other investors (the “Additional Investors”) on the same terms set forth in this Agreement. The Company shall revise Schedule I to this Agreement to reflect such additional sales. The closing of the purchases and sales of the Additional Notes and Additional Warrants shall take place at such times and places as the Company and the Additional Investor(s) shall mutually agree (each closing a “Subsequent Closing”). At the Subsequent Closing, the Company will deliver to each of the Additional Investors the respective Note and Warrant to be purchased by such Additional Investor, against receipt by the Company of the corresponding purchase price set forth on Schedule I hereto (also, the “Purchase Price”). Each of the Notes and Warrants will be registered in such Additional Investor’s name in the Company’s records. Unless the context requires otherwise, the Closing and any Subsequent Closing is generally referred to as a “Closing”, and each Investor and each Additional Investor is generally referred to as an “Investor.” Each Additional Investor under this Section 1(c) shall be deemed to be an Investor under this Agreement subject to the terms and conditions hereunder, and any Additional Notes and Additional Warrants purchased and sold in a Subsequent Closing shall be deemed respectively to be “Notes” and “Warrants” (as defined in Section 1(a) of this Agreement).

Subsequent Closing. Section 2.2 of the Agreement hereby is deleted and replaced in its entirety with the following (a) The initial sale of the Preferred Stock shall occur in three stages on three purchase dates, the first being the "Subsequent Closing", the second being the "Second Preferred Closing" and the third being the "Third Preferred Closing", each of which respective dates shall be determined as set forth below and shall be subject to the conditions set forth herein; provided, that additional sales of any remaining Commitments in excess of $150 million may occur after the Third Preferred Closing as set forth below. Each sale of the Preferred Stock shall take place at the location as agreed to by the Purchasers and the Company, or in the absence of such agreement, then at the offices of counsel for the single largest Purchaser of Preferred Stock. In connection with the funding of the first $150 million of the Commitment Amount (as defined below) to complete the purchase of Preferred Stock, the Purchasers shall be obligated to remit to the Company funds for their purchase of Preferred Stock on the following funding dates: (i) $25 million of the Commitment Amount shall be remitted no later than on the third (3rd) Business Day after the Subsequent Closing; (ii) up to $25 million of the Commitment Amount shall be remitted no later than on the tenth (10th) Business Day after the Second Preferred Closing, which amount and purchase date shall be determined by the Board of Directors; provided, however, that the date of such remittance for the Second Preferred Closing shall occur no earlier than January 2, 2001; and (iii) up to $100 million of the Commitment Amount (plus, any amount of the $25 million that has not been funded in connection with the Second Preferred Closing) shall be remitted no later than on the tenth (10th) Business Day after the Third Preferred Closing, which amount and purchase date shall be determined by the Board of Directors; provided, however, that the date of such remittance for the Third Preferred Closing shall occur no earlier than January 2, 2001. In connection with the Third Preferred Closing, each Purchaser's obligation to purchase and pay for the Preferred Stock to be sold to such Purchaser at the Third Preferred Closing is subject to the satisfaction or waiver, prior to or at the Commitment Revocation Date, of the conditions set forth in Sections 3A.1, 3A.2, 3A.3, 3A.10 and 3A.12; provided that each such Section is applied by substituting the "Co...

Subsequent Closing. The Company may, in its sole discretion, provide for deferred closings hereunder (a "Subsequent Closing"), to be held at the offices of the Company, at such time and dates as the Company may determine (the date of any such Subsequent Closing being referred to as a "Subsequent Closing Date"). Any Subsequent Closing(s) will take place as promptly as possible following the initial Closing hereunder. The number of shares of Series D Preferred which any Subsequent Investor shall be entitled to purchase, shall be determined within the sole discretion of the Company, but in no event shall the total number of shares of Series D Preferred sold pursuant to this Agreement be more than three million (3,000,000) shares. Upon completion of any Subsequent Closing, if any, all additional purchasers of shares of Series D Preferred shall be considered "Investors" within the meaning of this Agreement.

Subsequent Closing. On the Subsequent Closing Date, upon the terms and subject to the conditions set forth herein, the Company agrees to sell and the Purchaser agrees to purchase Mergeco Shares for $2,001,126.67 as determined pursuant to Section 2.5(a) (such purchase and sale being the “Subsequent Closing”). Each Purchaser shall deliver to the Company such Purchaser’s Shares Subscription Amount, and the Company shall deliver to each Purchaser its Mergeco Shares as determined pursuant to Section 2.5(a). The Company and Purchaser shall deliver the other items set forth in Section 2.5 deliverable at the Subsequent Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.5 and 2.6, the Subsequent Closing shall occur at the offices of Purchaser Counsel or such other location as the parties shall mutually agree. Notwithstanding anything herein to the contrary, the Subsequent Closing must take place on or before sixty-five (65) days after the Note Closing Date (the “Subsequent Closing Termination Date”). In the event the Subsequent Closing is not held on or before the Subsequent Closing Termination Date, the Company shall cause all subscription documents and funds, if any, to be returned, without interest or deduction to each prospective Purchaser.

Subsequent Closing. On the Subsequent Closing Date, upon the terms and subject to the conditions set forth herein, substantially concurrent with the execution and delivery of this Agreement by the parties hereto, the Company agrees to sell, and each Purchaser agrees to purchase, that number of Shares and Warrants equaling its respective Subscription Amount. Each Purchaser shall deliver to the Company, via wire transfer or a check, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by the Purchaser and the Company shall deliver to each Purchaser its respective Shares and Warrants, and the Company and each Purchaser shall deliver the other items set forth in Section 2.2 deliverable at each Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Subsequent Closing shall occur at such location as the parties shall mutually agree, including the delivery to the Company of immediately available funds comprising the aggregate Subscription Amounts for such Subsequent Closing.

Subsequent Closing. The subsequent closing of the purchase and sale of 4,765,248 Shares shall take place at the offices of HLG at 10:00 a.m. on or before June , 2012 (which time, date and place are referred to in this Agreement as the “Subsequent Closing” and, together with the Initial Closing, each, a “Closing”). At the Subsequent Closing, the Company shall deliver to the New Investor a certificate representing the Shares that such New Investor is purchasing against payment of the aggregate Series C-1 Purchase Price therefor by check or wire transfer. The New Investor shall become a party to, and become bound by, this Agreement, the Investors’ Rights Agreement, the Confidential treatment has been requested with respect to portions of this agreement as indicated by “[***]” and such confidential portions have been deleted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. Voting Agreement and the First Refusal and Co-Sale Agreement as an “Investor” thereunder without, except as otherwise agreed with the Company, the need for an amendment to this Agreement, the Investors’ Rights Agreement, the Voting Agreement and the First Refusal and Co-Sale Agreement except to add such New Investor as a signatory thereto and to add such New Investor’s name to the appropriate schedule to such agreement (including supplementing Schedule A with the name and address of each New Investor, the number of Shares to be purchased by such New Investor at the Subsequent Closing and the total Series C-1 Purchase Price payable by such New Investor at the Subsequent Closing) and each New Investor shall have the rights and obligations hereunder and thereunder as an “Investor”, in each case as of the date of the Subsequent Closing.

Subsequent Closing. The obligations of Buyer to effect the Subsequent Closing and make the Approval Payment pursuant to Section 2.01(c)(i), shall be subject to the satisfaction of the following conditions, as of the Subsequent Closing Date, any of which may be waived in writing by Buyer in its sole discretion: (i) Seller shall have provided to Buyer evidence reasonably satisfactory to Buyer of the Approval. (ii) At the Subsequent Closing, (A) the Subsequent Closing Representations (other than Section 3.08(b)), as amended pursuant to Section 5.11, if applicable, shall be true, correct and complete in all respects, and (B) the Subsequent Closing Representations in Section 3.08(b), as amended pursuant to Section 5.11, if applicable, shall be true, correct and complete except where the failure to be true, correct or complete would not reasonably be expected to have a Material Adverse Effect; and Seller shall have delivered to Buyer a certificate dated as of the Subsequent Closing Date and executed by an officer of Seller expressly confirming that this condition has been met. (iii) Seller shall have complied in all material respects with its obligations hereunder and under the other Transaction Documents. Portions of this Exhibit, indicated by the ▇▇▇▇ “[***],” were omitted and have been filed separately with the Securities and Exchange Commission pursuant to the Registrant’s application requesting confidential treatment pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended. (iv) The Payment Direction and Confidentiality Letter and the Deposit Account Agreement shall have been executed by Seller and delivered by Seller to Buyer, and Buyer shall have received the same. (v) The Kreos Pledge shall have been released.

Subsequent Closing. Section 1.3 of the Original Agreement is hereby amended to read as follows:

Subsequent Closing. Following the Initial Closing, each Purchaser shall (severally, and not jointly) purchase its Pro Rata Portion of additional Notes with an aggregate original principal amount of Seven Hundred Thirty Five Thousand Dollars ($735,000) for an aggregate purchase price of Five Hundred Twenty Five Thousand Dollars ($525,000) subject to the terms and conditions of such purchase being mutually satisfactory to the Company and the Purchasers and that in no event shall, after giving effect to any such sale, the aggregate outstanding original principal amount of all Notes exceed the Maximum Principal Amount (the “Subsequent Closing”), and provided further that each Purchaser shall be offered terms in respect of its participation in Subsequent Closing(s) which are at least as favorable as the terms applicable to any other purchaser (a “Subsequent Purchaser”) in the Subsequent Closing. Following such Subsequent Closing, Exhibit B hereto shall be amended to include the Notes purchased by the applicable Purchasers at such Subsequent Closing. The Subsequent Closing shall be on a date mutually satisfactory to the Company and the Purchasers; provided, however, such date shall take place no later than the earlier of the Merger Effective Date or the Merger Termination Date.” d. Section 4.13 of the Note Purchase Agreement is hereby amended by deleting Section 4.13 in its entirety and replacing with the following: