Common use of Subsequent Closings Clause in Contracts

Subsequent Closings. The Company may sell, in one or more subsequent closings (each, a “Subsequent Closing”) on or before November 15, 2005, unless extended upon agreement between the Company and the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent Purchaser”) as the Board of Directors of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “Subsequent Closing” and, together with the Initial Closing, a “Closing”). Any such sales and purchase shall be made upon the same terms and conditions as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent Purchaser, each Subsequent Purchaser shall enter into the Registration Rights Agreement and shall have the rights and obligations thereunder. Following each Subsequent Closing, any Subsequent Purchaser purchasing Shares hereunder shall be deemed to be a Purchaser hereunder and the name of such Purchaser and the number of Shares purchased by such Purchaser shall be included on the Schedule of Purchasers attached as Schedule 1 hereto.

Subsequent Closings. The At any time and from time to time on or before July 15, 2008, the Company may sell, in issue additional Notes to one or more additional persons or entities (an “Additional Purchaser”) at one or more subsequent closings (each, a “Subsequent Closing”) on or before November 15, 2005, unless extended upon agreement between the Company and the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent Purchaser”) as the Board of Directors of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing (each, each a “Subsequent Closing” and, together with and the Initial date of closing of any Subsequent Closing, a “ClosingSubsequent Closing Date”). Any such sales and purchase shall be made upon the same terms and conditions as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent Purchaser, each Subsequent Purchaser shall enter into the Registration Rights Agreement and shall have the rights and obligations thereunder. Following At each Subsequent Closing, any (i) each Additional Purchaser shall deliver to the Company by check or wire transfer of immediately available funds such Purchaser’s Drawdown Amount and (ii) the Company shall issue and deliver to each Purchaser a Note in favor of such Purchaser in the corresponding principal amount equal to such Purchaser’s Drawdown Amount, and the Company agrees to issue to each Purchaser a Warrant in accordance with Section 1. Each Subsequent Purchaser purchasing Shares hereunder Closing shall be made on the terms and conditions set forth in this Agreement. At each Subsequent Closing, the representations and warranties of the Company in Section 3 hereof (and the Schedule of Exceptions delivered to the Purchasers in the Initial Closing (the “Schedule of Exceptions”)) shall be deemed to be a Purchaser hereunder speak as of the Initial Closing Date and the name Company shall have no obligation to update any such disclosure and the representations and warranties of the Additional Purchasers in Section 4 hereof shall speak as of such Purchaser and the number of Shares purchased by such Purchaser shall be included on the Schedule of Purchasers attached as Schedule 1 heretoSubsequent Closing.

Subsequent Closings. The Following the Initial Closing Date and until December 18, 2012, the Company may sell, in one or more subsequent closings (each, a “Subsequent Closing”) on or before November 15, 2005, unless extended upon agreement between the Company and the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent Purchaser”) as the Board of Directors of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “Subsequent Closing” and, together with the Initial Closing, a “Closing”). Any such sales and purchase shall be made upon the same terms and conditions as those contained herein. As a condition in this Agreement, an additional principal amount of Debentures equal to the Closings hereunderMaximum Amount less the amount sold to Purchasers in the Initial Closing, to one or more Purchasers, ROFR Purchasers and/or a new purchaser described from the Companylist set forth on Schedule 2.1(b) (each such ROFR Purchaser or other new purchaser, an “Additional Purchaser”); provided, however, that each Purchaser and, upon participating in the execution Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of an appropriate counterpart signature page, Debentures and Warrants that such Purchaser purchased at the form Initial Closing) of which the portion of such Subsequent Closing not subscribed to by a ROFR Purchaser. Each Additional Purchaser that subscribes to the Subsequent Closing shall be provided required to each such Subsequent Purchaser, each Subsequent Purchaser shall enter into become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall have otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ notice (but not to exceed 4 Trading Days prior to the rights and obligations thereunder. Following each Subsequent Closing) of the occurrence of the Subsequent Closing and, any Subsequent Purchaser purchasing Shares hereunder shall be deemed to be if a Purchaser hereunder and wants to participate, it will provide the name Company with at least one Trading Day notice of such Purchaser and the number of Shares purchased by such Purchaser participation. There shall only be included on the Schedule of Purchasers attached as Schedule 1 heretoone Subsequent Closing.

Subsequent Closings. The Company may sell, at any time prior to 14 days after the Closing, in one or more subsequent closings (each, a “"Subsequent Closing”) on or before November 15"), 2005, unless extended upon agreement between the Company and the Placement Agent, an up to 246,198 additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closingpurchase price of $21.14 per share, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent such purchasers (each, a “Subsequent an "Additional Purchaser”") as may be approved by the Board of Directors of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “Subsequent Closing” and, together with the Initial Closing, a “Closing”)Company. Any such sales and purchase shall be made upon the same terms and conditions as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent Purchaser, each Subsequent Purchaser shall enter into the Registration Rights Agreement and shall have the rights and obligations thereunder. Following At each Subsequent Closing, any Subsequent (i) the Company and each Additional Purchaser purchasing shall execute and deliver a counterpart signature page hereto, whereupon such Additional Purchaser shall become a "Purchaser" hereunder and the Shares hereunder purchased by such Additional Purchaser shall be deemed to be "Shares" for purposes of this Agreement, and (ii) the Company shall cause Schedule I hereto to be amended to reflect the purchases made by the Additional Purchasers at each Subsequent Closing. At each Subsequent Closing, the Company shall deliver to each Additional Purchaser a Purchaser hereunder and certificate for the number of Shares being purchased at the Subsequent Closing by such Additional Purchaser, registered in the name of such Additional Purchaser, against payment to the Company of the purchase price in the manner specified above. The Company shall deliver to each Purchaser, within 15 days after any Subsequent Closing, written notice of such Subsequent Closing (which notice shall specify the names of each Additional Purchaser and the number of Shares purchased by such Purchaser shall be included on the Schedule shares of Purchasers attached as Schedule 1 heretoSeries E Preferred Stock issued to each).

Subsequent Closings. The Company may sellUpon the purchase of any Additional Notes, subject to the satisfaction or waiver of the closing conditions set forth in one or more subsequent closings (eachSections 4.1, a “4.3 and 4.4 hereof, Subsequent Closing”) Closings shall take place at the offices of Pillsbury ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, on or before November 15, 2005, unless extended upon agreement between such date and at such time as the Company and the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares Additional Purchasers mutually agree upon in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent Purchaser”) as the Board of Directors of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing writing (each, a “Subsequent Closing” and, collectively, the “Subsequent Closings” and, together with the Initial Closing, individually, a “Closing” and, collectively, the “Closings”). Any such sales and purchase shall be made upon the same terms and conditions The date of each applicable Subsequent Closing is referred to herein as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such “Subsequent Purchaser, each Subsequent Purchaser shall enter into the Registration Rights Agreement and shall have the rights and obligations thereunder. Following Closing Date.” At each Subsequent Closing, any the Company shall deliver to each Additional Purchaser an Additional Note, dated as of such Subsequent Purchaser purchasing Shares hereunder Closing Date, in an original principal amount equal to the dollar amount set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing Note Principal Amount” on Schedule B hereto, which shall be deemed updated by the Company from time to be a Purchaser hereunder and time as necessary upon each Subsequent Closing, with respect to such Additional Purchaser, all against payment in the amounts set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing Note Principal Amount” on Schedule B hereto, by any combination of (i) bank check, (ii) personal check or (iii) wire transfer of immediately available funds to such Purchaser and account as the number of Shares purchased by such Purchaser shall be included on the Schedule of Purchasers attached as Schedule 1 heretoCompany designates.

Subsequent Closings. The Following the Initial Closing Date and until December 14, 2012, the Company may sell, in one or more subsequent closings (each, a “Subsequent Closing”) on or before November 15, 2005, unless extended upon agreement between the Company and the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent Purchaser”) as the Board of Directors of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “Subsequent Closing” and, together with the Initial Closing, a “Closing”). Any such sales and purchase shall be made upon the same terms and conditions as those contained herein. As a condition in this Agreement, an additional principal amount of Debentures equal to the Closings hereunderMaximum Amount less the amount sold to Purchasers in the Initial Closing, to one or more Purchasers, ROFR Purchasers and/or a new purchaser described from the Companylist set forth on Schedule 2.1(b) (each such ROFR Purchaser or other new purchaser, an “Additional Purchaser”); provided, however, that each Purchaser and, upon participating in the execution Initial Closing shall have the right to purchase up to its pro-rata share (based on the amounts of an appropriate counterpart signature page, Debentures and Warrants that such Purchaser purchased at the form Initial Closing) of which the portion of such Subsequent Closing not subscribed to by a ROFR Purchaser. Each Additional Purchaser that subscribes to the Subsequent Closing shall be provided required to each such Subsequent Purchaser, each Subsequent Purchaser shall enter into become a party to this Agreement and the Registration Rights Agreement by executing and delivering a counterpart signature page thereto, and shall have otherwise be deemed a “Purchaser” for purposes of this Agreement. The Company shall provide Purchasers with at least 2 Trading Days’ notice (but not to exceed 3 Trading Days prior to the rights and obligations thereunder. Following each Subsequent Closing) of the occurrence of the Subsequent Closing and, any Subsequent Purchaser purchasing Shares hereunder shall be deemed to be if a Purchaser hereunder and wants to participate, it will provide the name Company with at least one Trading Day notice of such Purchaser and the number of Shares purchased by such Purchaser participation. There shall only be included on the Schedule of Purchasers attached as Schedule 1 heretoone Subsequent Closing.

Subsequent Closings. The After the Closing, additional Shares (which, together with the Shares issued at the Closing, shall not exceed 7.5 million shares in the aggregate), and additional Warrants (which, together with the Warrants issued at the Closing, shall not represent the right to acquire more than 3.75 million shares of Warrant Shares in the aggregate) may be issued at the discretion of the Company may sell, in at one or more subsequent closings (each, each a “Subsequent Closing”) which are held on or before November 15August 21, 2005, unless extended 2009. Each Subsequent Closing shall be effective upon agreement between the Company and the Placement Agent, an additional number date (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent PurchaserClosing Date”) as the Board of Directors of the Company may approve Company’s receipt from a Purchaser of a wire transfer of funds in the amount of the Purchase Price for the Securities being purchased by such Purchaser at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “such Subsequent Closing” and, together with the Initial Closing, a “Closing”). Any such sales and purchase shall be made Effective upon the same terms and conditions as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent PurchaserClosing, each Subsequent the applicable Purchaser shall also enter into and become a party to this Agreement as if such Purchaser had executed such agreement at the Registration Rights Agreement Closing. At the Closing, the Company shall prepare Exhibit A with respect to the Purchasers purchasing the Shares and shall have Warrants at the rights and obligations thereunderClosing. Following Promptly after each Subsequent Closing, any Subsequent Purchaser purchasing Shares hereunder the Company shall be deemed amend Exhibit A as appropriate. The shares of Common Stock, the warrants to be a Purchaser hereunder purchase shares of Common Stock, and the name of Common Stock underlying such Purchaser warrants, that are sold pursuant to and in accordance with Section 1.1 and this Section 1.4 are referred to herein as the “Shares,” the “Warrants,” and the number of Shares purchased by such Purchaser shall be included on “Warrant Shares,” respectively, and are referred to herein collectively as the Schedule of Purchasers attached as Schedule 1 hereto“Securities.”

Subsequent Closings. The Subject to the provisions hereof, the Company may sellsell additional shares of Series D Stock, at any time prior to thirty (30) days after the Second Closing, in one or more subsequent closings (each, a “"Subsequent Closing”"), to such purchasers ("Subsequent Purchasers") on or before November 15, 2005, unless extended upon agreement between as may be approved by the holders of at least sixty percent (60%) of the Shares purchased at the First Closing. The maximum number of additional shares of Series D Stock that may be sold by the Company at each Subsequent Closing shall equal the difference between (x) 9,089,329 and (y) the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at the Initial First Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Second Closing and any prior Subsequent Purchaser”) Closing(s). Each Subsequent Closing shall take place on such date or dates as shall be approved by the Company's Board of Directors (the "Board of the Company may approve at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “Subsequent Closing” and, together with the Initial Closing, a “Closing”Directors"). Any All such sales and purchase made at each Subsequent Closing shall be made upon on the same terms and conditions as those contained hereinset forth in this Agreement. As a condition to the Closings hereunder, the Company, At each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent PurchaserClosing, each Subsequent Purchaser shall enter into the Registration Rights Agreement execute and shall have the rights and obligations thereunder. Following each Subsequent Closingdeliver a counterpart signature page hereto, any whereupon such Subsequent Purchaser purchasing Shares shall become a "Purchaser" hereunder and the shares of Series D Stock purchased by such Subsequent Purchaser shall be deemed to be a "Shares" for purposes of this Agreement. Promptly following each Subsequent Closing, the Company shall deliver to each Purchaser hereunder and the name written notice of such Purchaser Subsequent Closing (which notice shall specify the names of the Subsequent Purchasers and the number of Shares purchased purchased) and shall cause this Agreement to be amended to complete Exhibit A-III to reflect the purchases made by such Purchaser shall be included on the Schedule of Purchasers attached as Schedule 1 heretoSubsequent Purchasers.

Subsequent Closings. The At any time on or before April 30, 2000, the Company may sell, in one or more subsequent closings (eachclosings, a “Subsequent Closing”) on any or before November 15, 2005, unless extended upon agreement between the Company and the Placement Agent, an additional number (which number all of Shares shall not exceed, when combined with the Shares not sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock First Closing hereunder to subsequent such purchasers (each, a “Subsequent Purchaser”) as may be approved by the Board of Directors of the Company may approve at (the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “"Subsequent Purchasers"). At each Subsequent Closing” and, together with the Initial Closing, a “Closing”). Any such sales and purchase shall be made upon the same terms and conditions as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent Purchaser, (i) each Subsequent Purchaser shall enter into the Registration Rights Agreement and shall have the rights and obligations thereunder. Following each Subsequent Closing, any execute a counterpart signature page hereto whereupon such Subsequent Purchaser purchasing shall become a "Purchaser" hereunder and the Shares hereunder purchased by such Subsequent Purchaser shall be deemed to be a Purchaser Shares hereunder and (ii) each Subsequent Purchaser shall execute a counterpart signature page to the name of Investor Rights Agreement (as defined below), whereupon such Subsequent Purchaser shall become an "Investor" and "Holder" thereunder and the number shares of Shares purchased Series C Preferred Stock held by such Subsequent Purchaser shall be included deemed "Shares" thereunder. All such sales shall be made on the terms and conditions of this Agreement, including satisfaction of the closing conditions set forth in Section 5.1 and the Subsequent Purchasers' making of the representations and warranties set forth in Section 4 hereof. Notwithstanding the foregoing, the Company shall be under no obligation to update or supplement its representations and warranties set forth in Section 3 hereof or the Schedule of Purchasers attached Exceptions in connection with any such Subsequent Closing nor to deliver the legal opinion as Schedule 1 heretoprovided in section 5.1(i) hereof.

Subsequent Closings. The Company may sell, in one or more subsequent closings At any time within twenty-four (each, a “Subsequent Closing”24) on or before November 15, 2005, unless extended upon agreement between the Company and the Placement Agent, an additional number (which number of Shares shall not exceed, when combined with the Shares sold at months after the Initial Closing, 28,402,777 Shares in upon a determination of the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent Purchaser”) as need for additional funding by the Board of Directors of the Company, the Company may approve at give no less than twenty (20) days’ notice to the same price per Share as the Shares purchased and sold at the Initial Closing Investors (each, a “Subsequent Closing” andFunding Notice”) of the time and place of one or more closings at which the Company shall sell, together with and the Initial ClosingInvestors shall purchase, a “Closing”). Any such sales and purchase shall be made upon the same on terms and conditions as those contained hereinin this Agreement, the Subsequent Closing Shares. As The Funding Notice shall set forth: (i) the number of Subsequent Closing Shares to be purchased by each Investor and the aggregate purchase price payable by each Investor (it being understood that each Investor shall be required to purchase its pro-rata share of such Subsequent Closing Shares); (ii) the wire transfer instructions for the Company to which the purchase price for the Subsequent Closing Shares shall be delivered by the Investors; (iii) a condition certificate from an authorized officer of the Company to the Closings hereundereffect that the conditions precedent set forth in Section 5.3 hereof have been satisfied, other than the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of conditions set forth in Section 5.3(f) (which shall be provided to each such satisfied concurrently with or as soon as possible after the purchase price has been paid in respect of the Subsequent Purchaser, each Closing Shares); and (iv) the manner in which the proceeds of the sale of the Subsequent Purchaser shall enter into Closing Shares being purchased will be used by the Registration Rights Agreement and shall have the rights and obligations thereunder. Following each Subsequent Closing, any Subsequent Purchaser purchasing Shares hereunder Company (which shall be deemed in accordance with Section 1.3 hereof). The dates of the purchase and sale of the Subsequent Closing Shares are collectively referred to be a Purchaser hereunder in this Agreement as the “Subsequent Closing Dates” and the name of such Purchaser and closing or closings as the number of Shares purchased by such Purchaser shall be included on the Schedule of Purchasers attached as Schedule 1 hereto“Subsequent Closings.”

Subsequent Closings. The After the Closing, additional Shares (which, together with the Shares issued at the Closing, shall not exceed 10 million shares in the aggregate), and additional Warrants (which, together with the Warrants issued at the Closing, shall not represent the right to acquire more than 5 million shares of Warrant Shares in the aggregate) may be issued at the discretion of the Company may sell, in at one or more subsequent closings (each, each a “Subsequent Closing”) which are held on or before November 15May 31, 2005, unless extended 2008. Each Subsequent Closing shall be effective upon agreement between the Company and the Placement Agent, an additional number date (which number of Shares shall not exceed, when combined with the Shares sold at the Initial Closing, 28,402,777 Shares in the aggregate) of authorized but unissued shares of Common Stock to subsequent purchasers (each, a “Subsequent PurchaserClosing Date”) as the Board of Directors of the Company may approve Company’s receipt from a Purchaser of a wire transfer of funds in the amount of the Purchase Price for the Securities being purchased by such Purchaser at the same price per Share as the Shares purchased and sold at the Initial Closing (each, a “such Subsequent Closing” and, together with the Initial Closing, a “Closing”). Any such sales and purchase shall be made Effective upon the same terms and conditions as those contained herein. As a condition to the Closings hereunder, the Company, each Purchaser and, upon the execution of an appropriate counterpart signature page, the form of which shall be provided to each such Subsequent PurchaserClosing, each Subsequent the applicable Purchaser shall also enter into and become a party to this Agreement as if such Purchaser had executed such agreement at the Registration Rights Agreement Closing. At the Closing, the Company shall prepare EXHIBIT A with respect to the Purchasers purchasing the Shares and shall have Warrants at the rights and obligations thereunderClosing. Following Promptly after each Subsequent Closing, any Subsequent Purchaser purchasing Shares hereunder the Company shall be deemed amend EXHIBIT A as appropriate. The shares of Common Stock, the warrants to be a Purchaser hereunder purchase shares of Common Stock, and the name of Common Stock underlying such Purchaser warrants, that are sold pursuant to and in accordance with Section 1.1 and this Section 1.4 are referred to herein as the “Shares,” the “Warrants,” and the number of Shares purchased by such Purchaser shall be included on “Warrant Shares,” respectively, and are referred to herein collectively as the Schedule of Purchasers attached as Schedule 1 hereto“Securities.”