Common use of Subsequent Closings Clause in Contracts

Subsequent Closings. Subject to the terms and conditions of this Agreement, the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.

Subsequent Closings. Subject (a) At any time and from time to time, on or prior to ninety (90) days after the Initial Closing and for an additional period of up to ninety (90) days after July 1, 2003, the Company may sell up to 5,000,000 Preferred Shares (all such shares being referred to as the “Additional Shares”) to such Persons as may be approved by the Company’s Board of Directors (individually, an “Additional Purchaser,” and collectively, the “Additional Purchasers”), on the same terms and at the same purchase price per share as under the Initial Closing. All such sales shall be made subject to the terms and conditions of set forth in this Agreement, and in reliance on the representations and warranties set forth in this Agreement. The closing or closings of the purchase and sale of Additional Shares, if any, shall take place at 10:00 a.m. on the date of such sale at the offices of Akin, Gump, Strauss, Xxxxx & Xxxx, L.L.P., 000 X. 0xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxx 00000, or at such other location, date and time as may be agreed upon between the Company may sell and the Additional Purchasers (each such closing being called a “Subsequent Closing” and the date and time of each such Subsequent Closing being called a “Subsequent Closing Date”). At each Subsequent Closing, the Company shall issue and deliver to each Investor up Additional Purchaser a stock certificate or certificates in definitive form, registered in the name of such Additional Purchaser, representing the Additional Shares being purchased by it at the Subsequent Closing. As payment in full for the Additional Shares being purchased by it under this Agreement, and against delivery of the stock certificate or certificates therefore as aforesaid, on the Subsequent Closing Date, each Additional Purchaser shall pay to the Company by wire transfer or by such number of Series A Shares other method as is may be reasonably acceptable to the Company, immediately available funds in the amount set forth opposite the name of each such Investor Additional Purchaser under the heading “Aggregate Purchase Price for Preferred Shares” on Appendix A. Such amounts shall be paid to the account of the Company as shall have been designated in Exhibit A-6 hereof, at one or more subsequent closings (writing a reasonable time in advance to the “Additional Purchasers by the Company. The Initial Closing and the Subsequent Closings”) (the date of each Subsequent Closing , if any, shall hereinafter be referred to herein individually as a “Closing” and collectively as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “InvestorClosings.” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” Initial Closing Date and each Subsequent Closing Date shall be deemed the “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may besuch term is used in this Agreement.

Subsequent Closings. Subject to If the terms and conditions of this Agreement, Maximum Offering Amount is not sold at the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereofInitial Closing, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred any time prior to herein as the “Subsequent Closing Date”) to occur no later than May April 30, 2006 (2018 or at such other later time as the Company and the Investors Placement Agents may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant without notice to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing or consent from Purchasers (each a “Subsequent PurchaserClosing” and collectively the “Subsequent Closings”), the Company may sell additional Shares up to the Maximum Offering Amount, and if there are over-subscriptions, such additional Shares as may be sold in connection with the Over-Subscription Option (the “Subsequent Closing Shares”) to such persons as may be approved by the Company and who are reasonably acceptable to the Placement Agents (the “Additional Purchasers”). All such sales made at any Subsequent Closing, shall execute a counterpart signature page be made on the terms and conditions set forth in the Subscription Agreements, and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the Disclosure Schedule) shall speak as of each Closing (except to the extent specified otherwise in Section 3) and (ii) the representations and warranties of the Additional Purchasers in Section 4 hereof shall speak as of such Subsequent Closing. Any Subsequent Closing Shares issued and sold pursuant to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii1.2(b) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunderfor all purposes under this Agreement, and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. The Company shall amend Exhibit A hereto to reflect the sales pursuant to Initial Closing and the Subsequent Closings. For purposes of this Agreement, if any, shall be known collectively herein as the terms “Closings” or individually as a “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.”

Subsequent Closings. Subject to Notwithstanding the terms and conditions of this Agreementforegoing, in the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales event that all of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share conditions set forth in Section 1.2 above8.1 hereof are satisfied with respect to Mexico and the United States, but such conditions are not satisfied with respect to one or more other jurisdictions, Seller and Buyer agree to consummate the Closing with respect to those assets and liabilities of the Business for which (i) all required approvals and consents described in Section 8.1 have been obtained, or (ii) no approvals or consents are required (a "Primary Closing"). Any purchaser purchasing Series A Shares In the event of a Primary Closing, Seller shall transfer and assign to Buyer or a Buyer Designee, and Buyer or a Buyer Designee shall purchase and accept from Seller, those Purchased Assets and Assumed Liabilities constituting that part of the Business for which consents or approvals described in Section 8.1 have been obtained or are not required, and Buyer shall pay such amount of the Purchase Price (as set forth on Schedule 2.3(d)) to be allocated to such part of the Business being so transferred. The closing or closings with respect to the Purchased Assets and Assumed Liabilities not transferred, assigned, purchased and accepted at a Subsequent the Primary Closing (each each, a “"Subsequent Purchaser”Closing") shall execute a counterpart signature page occur as promptly as practical after receipt of the remaining approvals and consents referred to in Section 8.1. At each Subsequent Closing, Buyer shall pay to Seller such amount of the Purchase Price (as set forth on Schedule 2.3(d)) to be allocated to such part of the Business being so transferred. From the Primary Closing, the entirety of the Business shall be operated for the benefit and detriment of Buyer. Buyer and Seller agree to negotiate in good faith any appropriate modifications to this Agreement and to effectuate the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may beforegoing."

Subsequent Closings. Subject to the terms and conditions of this AgreementAt any time after September 30, 2016, the Company may sell from time to each Investor time request that the Purchasers purchase up to such number the balance of Thirty Million Dollars ($30,000,000) in value of Series A Shares as D Preferred Stock not previously issued and sold at the First Closing in Five Hundred Thousand Dollars ($500,000) increments. Any such request shall be delivered in writing to the Purchasers who then hold Series D Preferred Stock, and such requested amount shall be offered pro rata to the Purchasers who then hold Series D Preferred Stock. Within ten (10) business days after any such written request is set forth opposite delivered to the name Purchasers, the Purchasers who desire to fulfill such request shall respond to the Company in writing indicating the amount of such requested amount such Purchaser is willing to purchase from the Company. Any such additional purchase shall be in the discretion of each Purchaser. Further, any such Investor in Exhibit A-6 hereof, at additional purchase may be allocated by any such Purchaser among one or more subsequent closings (of its funds, in its discretion. If one or more Purchasers agree(s) to purchase additional amounts pursuant to this Section 1.3.2, then the “Subsequent Closings”) (Schedule of Purchasers shall be amended to reflect the amount so purchased by each such Purchaser and the date of each such closing (each, a “Subsequent Closing Closing,” and together with the First Closing, the “Closings”). Subsequent Closings shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or held at such other time and place as shall be mutually agreed upon by the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at Purchasers who are participating in such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent ClosingsClosing. For purposes of this Agreement, unless the terms context otherwise requires, the term “Closing” and “Closing Date,” unless otherwise indicatedshall refer, refer with respect to each Purchaser, to the applicable closing and closing date of the Initial Closing specific closing at which such Purchaser purchases shares of Series D Preferred Stock and delivers to the Company the purchase price therefor. At a Closing, each applicable Purchaser shall deliver to the Company by check or wire transfer of immediately available funds the Subsequent Closing(samount indicated opposite such Purchaser’s name on the Schedule of Purchasers, and the Company shall deliver to each such Purchaser an originally executed certificate representing the shares of Series D Preferred Stock so purchased. The Purchasers expressly acknowledge that the Company may, in its discretion, issue and sell less than or up to Thirty Million Dollars ($30,000,000) in value of the Series D Preferred Stock, as determined by the Board of Directors of the Company in its sole and absolute discretion; provided, however, that Woodford Investment Management LLP, as agent for and on behalf of XX Xxxxxxxx Equity Income Fund, a sub fund of XX Xxxxxxxx Investment Fund and Woodford Patient Capital Trust Plc (collectively, “WIM”), shall deliver to the Company that certain Amended and Restated Promissory Note, dated as of July 18, 2016, by and between Evofem, Inc., a Delaware corporation, and Cosmederm Bioscience, Inc., a Delaware corporation (“Cosmederm”), in principal amount of Ten Million Dollars ($10,000,000) (the case may be“Promissory Note”) for cancellation by the Company in exchange for Five Million Dollars ($5,000,000) in value of the Series D Preferred Stock.

Subsequent Closings. Subject to At any time on or before ninety (90) days after the terms and conditions of this AgreementInitial Closing, the Company may sell to each Investor up to such number the balance of Series A the Shares as is set forth opposite and Warrants not sold at the name of Initial Closing (each such Investor in Exhibit A-6 hereofsale, at one or more subsequent closings (a “Subsequent Closing” and, along with the Initial Closing, the “Subsequent Closings”) to such persons or entities as may be approved by (a) the date Company’s Board of each Subsequent Closing Directors and (b) unless such persons or entities are currently a holder of any of the Preferred Stock of the Company prior to the purchase of Shares pursuant hereto, Javelin Venture Partners, L.P. All such sales shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to made on the terms of this Agreement and at the price per share conditions set forth in Section 1.2 abovethis Agreement. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page shares and warrants sold pursuant to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser 1.3 shall be deemed to be a party “Shares” and “Warrants,” respectively, for all purposes under this Agreement, and any purchasers thereof shall be deemed to be “Investors” for all purposes under this Agreement and the Shareholders Amended and Restated Investors’ Rights Agreement, dated as of November 17, 2010 (as amended to date, the “Investors’ Rights Agreement”), as the Investors’ Rights Agreement shall be further amended by that certain amendment thereto in the form attached hereto as Exhibit D (the “Amendment;” and, together with this Agreement and the Investors’ Rights Agreement, the “Financing Agreements”). Should any such sales be made, the Company shall prepare and distribute to the Investors a revised Exhibit A to this Agreement reflecting such sales. Such Investors shall become signatories to the Financing Agreements without the need for an amendment to any of the Financing Agreements except to add such person’s or entity’s name to the appropriate exhibit to such Financing Agreements, and shall have the rights and obligations hereunder and thereunder, in each case as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “applicable Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.

Subsequent Closings. Subject to If the terms and conditions of this Agreement, Maximum Offering Amount is not sold at the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereofInitial Closing, at one any time on or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred prior to herein as the “Subsequent Closing Date”) to occur no later than May 30February 12, 2006 (2020 or at such other later time as the Company and the Investors Placement Agents may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant without notice to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing or consent from Purchasers (each a “Subsequent PurchaserClosing” and collectively the “Subsequent Closings”), the Company may sell additional Shares up to the Maximum Offering Amount, and if there are over-subscriptions, such additional Shares as may be sold in connection with the Over-Subscription Option (the “Subsequent Closing Shares”) to such persons as may be approved by the Company and who are reasonably acceptable to the Placement Agents (the “Additional Purchasers”). All such sales made at any Subsequent Closing, shall execute a counterpart signature page be made on the terms and conditions set forth in the Subscription Agreement and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the Disclosure Schedule) shall speak as of each Closing (except to the extent specified otherwise in Section 3) and (ii) the representations and warranties of the Additional Purchasers in Section 4 hereof shall speak as of such Subsequent Closing. Any Subsequent Closing Shares issued and sold pursuant to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii1.2(b) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunderfor all purposes under this Agreement, and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. The Company shall amend Exhibit A hereto to reflect the sales pursuant to Initial Closing and the Subsequent Closings. For purposes of this Agreement, if any, shall be known collectively herein as the terms “Closings” or individually as a “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.”

Subsequent Closings. Subject to the terms and conditions of this Agreementprovisions hereof, the Company may sell to each Investor up to such number additional shares of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereofD 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") 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 Closings”Closing shall equal the difference between (x) 9,089,329 and (y) the number of Shares sold at the First Closing, the Second Closing and any prior Subsequent 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 date "Board of Directors"). All such sales made at each Subsequent Closing shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to made on the terms of this Agreement and at the price per share conditions set forth in Section 1.2 abovethis Agreement. Any purchaser purchasing Series A Shares at a At each Subsequent Closing (Closing, each a “Subsequent Purchaser”) Purchaser shall execute and deliver a counterpart signature page to this Agreement hereto, whereupon such Subsequent Purchaser shall become a "Purchaser" hereunder and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as shares of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares D Stock purchased by such Subsequent Purchaser shall be deemed to be “Purchased "Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For " for purposes of this Agreement. Promptly following each Subsequent Closing, the terms “Closing” and “Company shall deliver to each Purchaser written notice of such Subsequent Closing Date,” unless otherwise indicated, refer to (which notice shall specify the applicable closing and closing date names of the Initial Closing or Subsequent Purchasers and the number of Shares purchased) and shall cause this Agreement to be amended to complete Exhibit A-III to reflect the purchases made by the Subsequent Closing(s), as the case may bePurchasers.

Subsequent Closings. Subject to the terms and conditions of this AgreementAt any time on or before April 30, 2000, the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor sell, in Exhibit A-6 hereof, at one or more subsequent closings closings, any or all of the Shares not sold at the First Closing hereunder to such purchasers as may be approved by the Board of Directors of the Company (the “"Subsequent Closings”) (the date of Purchasers"). At each Subsequent Closing shall be referred to herein as the “Closing, (i) each Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) Purchaser shall execute a counterpart signature page to this Agreement hereto whereupon such Subsequent Purchaser shall become a "Purchaser" hereunder and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company Shares hereunder and (ii) each Subsequent Purchaser shall amend Exhibit A hereto to reflect the sales pursuant execute a counterpart signature page to the Investor Rights Agreement (as defined below), whereupon such Subsequent ClosingsPurchaser shall become an "Investor" and "Holder" thereunder and the shares of Series C Preferred Stock held by such Subsequent Purchaser shall be deemed "Shares" thereunder. For purposes All such sales shall be made on the terms and conditions of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date including satisfaction of the Initial Closing 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 Exceptions in connection with any such Subsequent Closing(s), Closing nor to deliver the legal opinion as the case may beprovided in section 5.1(i) hereof.

Subsequent Closings. Subject to the terms and conditions of this Agreement, the The Company may sell to each Investor up to such number sell, within sixty (60) days of the Initial Closing Date, any Series A Shares as is set forth opposite and Series A-1 Shares not purchased at the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings Initial Closing (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing DateAdditional Shares”) to occur no later than May 30, 2006 (or at such other time persons as the Company and Investor Growth Capital (together with Investor AB and its other affiliates, “IGC”) shall mutually determine at a price per share that is equal to or greater than the Investors may mutually agree upon), so long as the sales price per share of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and Series A-1 Shares purchased and sold at the price per share Initial Closing (as set forth in Section 1.2 2.2 above). Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) such sale shall execute a counterpart signature page be upon the same terms and conditions as those contained herein, subject to Section 5.2(l), and such persons or entities shall become parties to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below)Agreement, at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement that certain Investors’ Rights Agreement, dated as of the date hereof, by and among the Company and the Investors, the form of which is attached hereto as Exhibit C (the “Rights Agreement”), that certain Right of First Refusal and Co-Sale Agreement, dated as of the Subsequent Closing date hereof, by and among the Company, the Investors and certain stockholders named therein, the form of which agreement is attached hereto as Exhibit D (the “Co-Sale Agreement”) and that certain Voting Agreement, dated as of the date hereof, by and among the Company, the Investors and certain stockholders of the Company, the form of which agreement is attached hereto as Exhibit E (the “Voting Agreement” and together with the Rights Agreement and the Co-Sale Agreement, the “Ancillary Agreements”) and such persons and entities shall have the rights and obligations of an “Investor” Investor hereunder and thereunder. If a subsequent Closing under this Section 2.4 takes place, the Additional Shares sold and the Series A Shares purchased by such Subsequent Purchaser issued therein shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For for all purposes of under this Agreement, the terms . Any such Closing occurring under this Section 2.4 shall be a “Subsequent Closing,” and the date of any such Subsequent Closing shall be a “Subsequent Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.”

Subsequent Closings. Subject At any time within twenty-four (24) months after the Initial Closing, upon a determination of the need for additional funding by the Board of Directors of the Company, the Company may give no less than twenty (20) days’ notice to the Investors (a “Funding Notice”) of the time and place of one or more closings at which the Company shall sell, and the Investors shall purchase, on terms and conditions of contained in this Agreement, the Company may sell Subsequent Closing Shares. The Funding Notice shall set forth: (i) the number of Subsequent Closing Shares to be purchased by each Investor up 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 number 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 certificate from an authorized officer of Series A Shares as is the Company to the effect that the conditions precedent set forth opposite in Section 5.3 hereof have been satisfied, other than the name of each such Investor conditions set forth in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”Section 5.3(f) (which shall be satisfied concurrently with or as soon as possible after the date purchase price has been paid in respect of each the Subsequent Closing Shares); and (iv) the manner in which the proceeds of the sale of the Subsequent Closing Shares being purchased will be used by the Company (which shall be in accordance with Section 1.3 hereof). The dates of the purchase and sale of the Subsequent Closing Shares are collectively referred to herein in this Agreement as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (Dates” and the closing or at such other time closings as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent PurchaserClosings.”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.

Subsequent Closings. The Company may sell hereunder Series B Preference Shares and Warrants having an aggregate purchase price of up to US$186,905,000 (the “Authorized Allotment”). Subject to the terms and conditions Company’s reservation of this Agreementa sufficient number of Series B Preference Shares to be issued upon the full exercise of all Warrants sold hereunder, the Company may sell to each Investor up any portion of the Authorized Allotment not sold at the Initial Closing to such number of Series A Shares purchasers as is set forth opposite the name of each such Investor in Exhibit A-6 hereofit shall select, at one a price per share not less than the price per share paid at the Initial Closing, provided that any such sale shall be consummated not later than the earlier of (i) six (6) months following the Initial Closing or more subsequent closings (ii) the Company’s non-confidential filing of a registration statement with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Subsequent ClosingsAct”), reflecting an initial public offering in the United States that would constitute a Qualified Public Offering (as such term is defined in the Restated Articles) (the such date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing Offering End Date”). Any such purchaser shall execute and deliver a counterpart signature page to, and thereby, without further action by any Investor, become a party to and be deemed an Investor under, this Agreement, the Investors’ Rights Agreement (as defined below), the Right of First Refusal and Co-Sale Agreement (as defined below) and the Voting Agreement (as defined below), and all schedules and exhibits hereto and thereto shall automatically be updated to occur no later than May 30reflect such purchaser as a party hereto and thereto, 2006 (and the shares sold to such purchasers shall not be subject to the right of first offer set forth in Section 2.4 of the Investors’ Rights Agreement. The subsequent purchases and sales of the Series B Preference Shares and Warrants shall take place remotely via the exchange of documents and signatures, at such time or at such other time place as the Company and the Investors may acquiring Series B Preference Shares and Warrants in each such subsequent purchase and sale mutually agree upon)upon orally or in writing (which each such time and place are, so long together with the Initial Closing, designated as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent PurchaserClosing”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.

Subsequent Closings. Subject If the Maximum Offering Amount is not sold at the Initial Closing, at any time prior to October 31, 2017 or at such later time as the terms Company and conditions of this AgreementPlacement Agents may mutually agree without notice to or consent from Purchasers (each a “Subsequent Closing” and collectively the “Subsequent Closings”), the Company may sell to each Investor additional Shares up to the Maximum Offering Amount, and if there are over-subscriptions, such number of Series A additional Shares as is set forth opposite may be sold in connection with the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings Over-Subscription Option (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing DateShares”) to occur no later than May 30, 2006 (or at such other time persons as may be approved by the Company and who are reasonably acceptable to the Investors may mutually agree uponPlacement Agents (the “Additional Purchasers”). All such sales made at any Subsequent Closing, so long as shall be made on the sales terms and conditions set forth in the Subscription Agreements, and (i) the representations and warranties of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share Company set forth in Section 1.2 above3 hereof (and the Disclosure Schedule) shall speak as of each Closing (except to the extent specified otherwise in Section 3) and (ii) the representations and warranties of the Additional Purchasers in Section 4 hereof shall speak as of such Subsequent Closing. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page Shares issued and sold pursuant to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii1.2(b) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunderfor all purposes under this Agreement, and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. The Company shall amend Exhibit A hereto to reflect the sales pursuant to Initial Closing and the Subsequent Closings. For purposes of this Agreement, if any, shall be known collectively herein as the terms “Closings” or individually as a “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.”

Subsequent Closings. Subject 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 terms and conditions aggregate) may be issued at the discretion of this Agreement, the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the each a “Subsequent ClosingsClosing”) (the date of each which are held on or before May 31, 2008. Each Subsequent Closing shall be effective upon the date (a “Subsequent Closing Date”) of the 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 such Subsequent Closing. Effective upon each such Subsequent Closing, the applicable Purchaser shall also enter into and become a party to this Agreement as if such Purchaser had executed such agreement at the Closing. At the Closing, the Company shall prepare EXHIBIT A with respect to the Purchasers purchasing the Shares and Warrants at the Closing. Promptly after each Subsequent Closing, the Company shall amend EXHIBIT A as appropriate. The shares of Common Stock, the warrants to purchase shares of Common Stock, and the Common Stock underlying such warrants, that are sold pursuant to and in accordance with Section 1.1 and this Section 1.4 are referred to herein as the “Subsequent Closing Date”) Shares,” the “Warrants,” and the “Warrant Shares,” respectively, and are referred to occur no later than May 30, 2006 (or at such other time herein collectively as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent PurchaserSecurities.”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.

Subsequent Closings. Subject The subsequent closings after the First Closing (each such closing a "Subsequent Closing"), if any, of the sale and purchase of the Notes to be purchased by the Purchaser set forth in applicable Supplement shall occur at the offices of Piper & Marbury, L.L.P. counsel to the terms and conditions Company, at 1251 Avenue of this Agreementthe Americas, Xxx Xxxx, Xxx Xxxx 00000-0000 on such Business Day as may be agreed upon by the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of and each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”) Purchaser (the date of each Subsequent Closing shall be referred to herein as Closing, the “"Subsequent Closing Date”"). At each Subsequent Closing, (i) to occur no later than May 30, 2006 (or at such other time as the Company will execute and deliver a single Book-Entry Note and a Company's Order to the Paying Agent as custodian for DTC and registered in the name of Cede & Co., as nominee for DTC, and the Investors may mutually agree upon), so long as the sales Paying Agent will cause delivery of the Series A Shares at such Subsequent Closings are pursuant Notes represented by the Book Entry Note by book-entry transfer in DTC for credit to the terms account of this Agreement each Purchaser indicated on the applicable Supplement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at (ii) each such Purchaser shall (x) execute and deliver a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page joinder and consent to this Agreement in form and substance satisfactory to the Shareholders Agreement Company, the Paying Agent and each such Purchaser and (as defined y) pay, or cause the payment in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and immediately available funds in the Shareholders Agreement as amount of the date purchase price therefor by wire transfer of immediately available funds to an account of the Company as specified by the Company. If at the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto fail to reflect the sales pursuant tender such Notes to the Subsequent Closings. For purposes Purchasers as provided above in this Section 3.2, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchasers' satisfaction, each such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date without thereby waiving any rights it may have by reason of the Initial Closing such failure or the Subsequent Closing(s), as the case may besuch nonfulfillment.

Subsequent Closings. Subject to If the terms and conditions of this Agreement, Maximum Offering Amount is not sold at the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereofInitial Closing, at one any time on or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred prior to herein as the “Subsequent Closing Date”) to occur no later than May 30September 14, 2006 (2019 or at such other later time as the Company and the Investors Placement Agents may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant with notice to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing consent from Purchasers (each a “Subsequent PurchaserClosing” and collectively the “Subsequent Closings”), the Company may sell additional Shares up to the Maximum Offering Amount, and if there are over-subscriptions, such additional Shares as may be sold in connection with the Over-Subscription Option (the “Subsequent Closing Shares”) to such persons as may be approved by the Company and who are reasonably acceptable to the Placement Agents (the “Additional Purchasers”). All such sales made at any Subsequent Closing, shall execute a counterpart signature page to this Agreement be made on the terms and conditions set forth in the Subscription Agreements, and (i) the representations and warranties of the Company set forth in Section 3 hereof (and the Shareholders Agreement Disclosure Schedule) shall speak as of each Closing (as defined below) (except to the extent specified otherwise in Section 3.2(a)(iii3) below), at which time and (ii) the representations and warranties of the Additional Purchasers in Section 4 hereof shall speak as of such purchaser shall be deemed to be a party Subsequent Closing. Any Subsequent Closing Shares issued and sold pursuant to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser Section 1.2(b) shall be deemed to be “Purchased Shares” hereunderfor all purposes under this Agreement, and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. The Company shall amend Exhibit A hereto to reflect the sales pursuant to Initial Closing and the Subsequent Closings. For purposes of this Agreement, if any, shall be known collectively herein as the terms “Closings” or individually as a “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.”

Subsequent Closings. Subject to the terms and conditions of this AgreementAt any time on or before August 31, 1999, the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor sell, in Exhibit A-6 hereof, at one or more subsequent closings closings, any or all of the Shares not sold at the First Closing hereunder to such purchasers as may be approved by the Board of Directors of the Company (the “"Subsequent Closings”) (the date of Purchasers"). At each Subsequent Closing shall be referred to herein as the “Closing, (i) each Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”) Purchaser shall execute a counterpart signature page to this Agreement hereto whereupon such Subsequent Purchaser shall become a "Purchaser" hereunder and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company Shares hereunder and (ii) each Subsequent Purchaser shall amend Exhibit A hereto to reflect the sales pursuant execute a counterpart signature page to the Investor Rights Agreement (as defined below), whereupon such Subsequent ClosingsPurchaser shall become an "Investor" and "Holder" thereunder and the shares of Series B Preferred Stock held by such Subsequent Purchaser shall be deemed "Shares" thereunder. For purposes All such sales shall be made on the terms and conditions of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date including satisfaction of the Initial Closing 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 Exceptions in connection with any such Subsequent Closing(s), as the case may beClosing.

Subsequent Closings. Subject The closing of the sale and purchase of any Series of Shelf Notes to be purchased by the terms Purchasers shall occur at the offices of Xxxxxxx XxXxxxxxx LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, (or such other place as designated by Prudential) at 10:00 a.m., local time, at a closing (the “Closing”) on the Closing Day specified for such sale and conditions purchase in the Confirmation of this Agreement, Acceptance delivered by the Purchasers in connection with such Series. At such Closing the Company may sell will deliver to each Investor up Purchaser the Notes of the Series to be purchased by such Purchaser in the form of a single Note of such Series (or such greater number of Series A Shares such Notes in denominations of at least $100,000, as is set forth opposite the Purchasers may request), dated the Closing Day and registered in such Purchaser’s name (or in the name of such Purchaser’s nominee), as indicated in the applicable Confirmation of Acceptance, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor as directed by the Company in the applicable Request for Purchase. The obligation of each Purchaser to purchase the Notes to be sold to it on any Closing Day after the First Closing Date, is subject to the satisfaction, on or before each such Investor in Exhibit A-6 hereofClosing Day, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share conditions set forth in Section 1.2 above4.2 below. Any purchaser purchasing Series A Shares If, on such Closing Day, the Company fails to tender to the Purchasers the Notes to be acquired by such Purchasers on such Closing Day, or if the conditions specified in Section 4.2 have not been fulfilled to each Purchaser’s satisfaction, such Purchaser shall, at a Subsequent Closing (each a “Subsequent Purchaser”) shall execute a counterpart signature page to its election, be relieved of all further obligations under this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time without thereby waiving any rights each such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as Purchaser may have by reason of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing failure or the Subsequent Closing(s), as the case may besuch nonfulfillment.

Subsequent Closings. Subject Following the First Closing and until such ------------------- time as the Company shall have issued and sold all of the 1,875,000 shares of Series C Preferred Stock described in subsection 1.1 above, the Company shall have the fight, subject to the terms and conditions of this Agreementhereof, to issue and sell Shares to existing Purchasers and to additional persons who the Company may sell to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred authorized to herein as add to and include in the “Subsequent Closing Date”) to occur no later than May 30Schedule of Purchasers, 2006 (or at in such other time amounts as the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant Purchasers shall agree. Any additional person added to the terms Schedule of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing Purchasers shall: (each a “Subsequent Purchaser”i) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For "Purchaser" for all purposes of this Agreement, ; and (ii) be required to execute this Agreement and that certain Second Amended Investors Rights Agreement in the terms “form attached hereto as Exhibit C (the "Investors Rights Agreement") as a condition to the purchase of --------- Shares hereunder. The closing of the purchase and sale of additional Shares pursuant to this Section 2.2 shall be held at such time and place as the Company and such additional Purchasers may agree in writing. Any such closing referred to in this Section 2.2 is hereinafter referred to as a "Subsequent closing" or "Closing” " and “the date of a Subsequent Closing is hereinafter referred to as a "Subsequent Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial " or "Closing or the Subsequent Closing(s), as the case may beDate."

Subsequent Closings. Subject If the Maximum Offering Amount is not sold at the Initial Closing, at any time prior to October 30, 2020, or at such later date as the Company and Placement Agents may mutually agree, without notice to or consent from the Purchaser or any Other Purchaser, subject to the terms satisfaction (or waiver as provided herein) of the conditions set forth in Section 5 and conditions Section 6 of this AgreementAgreement (other than those conditions that by their nature will be satisfied at the Closing, but subject to the satisfaction (or waiver as provided herein) of such conditions) (each a “Subsequent Closing” and collectively the “Subsequent Closings” and the date that a Subsequent Closing occurs, a “Subsequent Closing Date”), the Company may sell to each Investor additional shares of Common Stock up to such number the Maximum Offering Amount, and if there are over-subscriptions, additional shares of Series A Shares as is set forth opposite Common Stock may be sold at the name of each such Investor Per Share Purchase Price in Exhibit A-6 hereofconnection with the Over-Subscription Option (collectively, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing DateShares”) to occur no later than May 30, 2006 (or at such other time persons as may be approved by the Company and who are reasonably acceptable to the Investors may mutually agree upon)Placement Agents, so long as including the sales of Purchaser. Any Subsequent Closing Shares issued and sold to the Series A Shares at such Subsequent Closings are Purchaser pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent Purchaser”1(b)(ii) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunderfor all purposes under this Agreement. The To the extent that any Shares are to be issued and sold to the Purchaser at a Subsequent Closing, the Company shall amend Exhibit A hereto to reflect the sales pursuant provide written notice to the Subsequent Closings. For purposes Purchaser of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial any Subsequent Closing or the at least three (3) Business Days prior to such Subsequent Closing(s), as the case may beClosing.

Subsequent Closings. Subject The parties understand that, from ------------------- time to time following the terms and conditions of this AgreementFirst Closing, the Company may sell to sell, and the Trust shall purchase if so instructed by the Company, additional Company Stock (each Investor up to closing of such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be transaction being referred to herein as a "Subsequent Closing"). The Company shall give notice, as described below (the “"Sale Notice"), to the Trustee regarding each Subsequent Closing Date”) to occur no later than May 30two (2) business days prior to the date of such Subsequent Closing, 2006 unless the Trustee elects to waive such condition. The Sale Notice shall set forth (or at i) the date of the Subsequent Closing, (ii) the number of Repurchased Shares and New Shares, if any, to be sold to, and purchased by, the Trust and (iii) the aggregate consideration to be paid by the Trust for such other time shares as determined pursuant to Section 3.1 (a) and (b) hereof (the "Subsequent Purchase Amount"). The Trust shall pay such Subsequent Purchase Amount by (i) paying to the Company and the Investors may mutually agree upon), so long as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing $.01 per New Share, if any, by wire transfer of immediately available funds, and (each a “Subsequent Purchaser”ii) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement increasing (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of such Subsequent Closing) the principal amount outstanding under the Note by an amount equal to the Subsequent Closing Purchase Amount minus the amount paid pursuant to clause (i) of this sentence. All Subsequent Closings will be held at the offices of Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on the date identified in the Sale Notice, or at such other time, date and place as an “Investor” hereunder and thereunder, may be mutually agreed upon by the Company and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunderTrustee. The Company shall amend Exhibit A hereto to reflect may defer the sales sale of Company Stock pursuant to this Section 3.2.1 if the Subsequent Closings. For purposes Company reasonably determines that there are sufficient legal, financial or accounting reasons for the Company to defer the timing of this Agreement, such sale and notifies the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date Trustee in writing of the Initial Closing or the Subsequent Closing(s), as the case may besuch deferral.

Subsequent Closings. The Company may sell up to an aggregate total of US$500,000,000 of Series B Preference Shares (including the purchase price of the Warrants, “Authorized Allotment”). Subject to the terms reservation of Series B Preference Shares and conditions Warrants pursuant to the last sentence of this AgreementSection 1.2(b), the Company may sell to each Investor up any portion of the Authorized Allotment not sold at the Initial Closing to such number of Series A Shares purchasers as is set forth opposite the name of each such Investor in Exhibit A-6 hereofit shall select, at one a price per share not less than the price per share paid at the Initial Closing, provided that any such sale shall be consummated not later than the earlier of (i) six (6) months following the Initial Closing or more subsequent closings (ii) the Company’s non-confidential filing of a registration statement with the United States Securities and Exchange Commission pursuant to the Securities Act of 1933, as amended (the “Subsequent ClosingsAct”), reflecting an initial public offering in the United States that would constitute a Qualified Public Offering (as such term is defined in the Restated Articles) (the such date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing Offering End Date”). Any such purchaser shall execute and deliver a counterpart signature page to, and thereby, without further action by any Investor, become a party to and be deemed an Investor under, this Agreement, the Investors’ Rights Agreement (as defined below), the Right of First Refusal and Co-Sale Agreement (as defined below) and the Voting Agreement (as defined below), and all schedules and exhibits hereto and thereto shall automatically be updated to occur no later than May 30reflect such purchaser as a party hereto and thereto, 2006 (and the shares sold to such purchasers shall not be subject to the right of first offer set forth in Section 2.4 of the Investors’ Rights Agreement. The subsequent purchases and sales of the Series B Preference Shares and Warrants shall take place remotely via the exchange of documents and signatures, at such time or at such other time place as the Company and the Investors may acquiring Series B Preference Shares and Warrants in each such subsequent purchase and sale mutually agree upon)upon orally or in writing (which each such time and place are, so long together with the Initial Closing, designated as the sales of the Series A Shares at such Subsequent Closings are pursuant to the terms of this Agreement and at the price per share set forth in Section 1.2 above. Any purchaser purchasing Series A Shares at a Subsequent Closing (each a “Subsequent PurchaserClosing”) shall execute a counterpart signature page to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall be deemed to be a party to this Agreement and the Shareholders Agreement as of the date of the Subsequent Closing as an “Investor” hereunder and thereunder, and the Series A Shares purchased by such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunder. The Company shall amend Exhibit A hereto to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date of the Initial Closing or the Subsequent Closing(s), as the case may be.

Subsequent Closings. Subject The Company may issue to Investors and other purchasers Series B Preferred Shares and Warrants at subsequent closings from time to time after the terms date hereof provided that the aggregate preference amount of the Series B Preferred Shares issued at the Initial Closing and conditions of at each Subsequent Closing shall not exceed $85 million. Each such investor ("New Investors") shall purchase Series B Shares and Warrants in the same proportion as the Investors purchasing in the Initial Closing and shall execute counterpart signature pages to this Agreement, the Company may sell Registration Rights Agreement (as defined below) and the Stockholders Agreement (as defined below). Such New Investors will, upon delivery to each Investor up to such number of Series A Shares as is set forth opposite the name of each such Investor in Exhibit A-6 hereof, at one or more subsequent closings (the “Subsequent Closings”) (the date of each Subsequent Closing shall be referred to herein as the “Subsequent Closing Date”) to occur no later than May 30, 2006 (or at such other time as the Company of such signature pages, become parties to, and bound by, this Agreement, the Registration Rights Agreement and the Investors may mutually agree upon)Stockholders Agreement, so long as the sales of the Series A Shares at such Subsequent Closings are pursuant each to the terms of this Agreement and same extent as if they had been Investors at the price per share Initial Closing. The Company shall remake the representations and warranties set forth in Section 1.2 above. Any purchaser 2.2 to the New Investors purchasing Series A Shares at a in each Subsequent Closing (and such New Investors shall make the representations and warranties set forth in Section 3 herein. As soon as reasonably practicable after each a “Subsequent Purchaser”) shall execute a counterpart signature page Closing, Exhibit A-2 to this Agreement and the Shareholders Agreement (as defined in Section 3.2(a)(iii) below), at which time such purchaser shall will be deemed amended to be a party to this Agreement and the Shareholders Agreement as of list the date of such Subsequent Closing, the Subsequent Closing as an “Investor” hereunder names of the New Investors purchasing shares of Series B Preferred Shares and thereunderWarrants hereunder, and the number of shares of Series A B Preferred Shares and Warrants purchased by each New Investor under this Agreement at such Subsequent Purchaser shall be deemed to be “Purchased Shares” hereunderClosing. The Company shall amend Exhibit A hereto will promptly furnish to reflect the sales pursuant to the Subsequent Closings. For purposes of this Agreement, the terms “Closing” and “Closing Date,” unless otherwise indicated, refer to the applicable closing and closing date each Investor copies of the Initial Closing or amendments to Exhibit B referred to in the Subsequent Closing(s), as the case may bepreceding sentence.