Common use of First Additional Closing Clause in Contracts

First Additional Closing. (a) At any time between the Closing Date and May 6, 2002, each Purchaser shall have the right (but not the obligation), upon a written notice to the Company and the other Purchasers (the "First Additional Closing Notice"), to purchase a number of shares of First Additional Preferred equal to the quotient obtained by dividing (x) the product of such Purchaser's Holdings Percentage and $5,750,000 by (y) 10,000. The Company shall file the First Certificate of Designations with the Secretary of State of the State of Delaware within two Trading Days following the delivery of the initial First Additional Closing Notice. (b) On the fifth Trading Day following the delivery of a First Additional Closing Notice (each, a "First Additional Closing Date"), (1) the Company shall deliver to each Purchaser participating in the applicable First Additional Closing (i) a stock certificate registered in the name of such Purchaser, representing the number of shares of First Additional Preferred equal to the quotient obtained by dividing such Purchaser's investment amount (as determined pursuant to Section 2.3(a)) in the First Additional Closing by 10,000, (ii) a First Additional Warrant, registered in the name of such Purchaser, pursuant to which the Purchaser shall have the right to acquire on the terms set forth therein a number of Warrant Shares equal to 25% of such Purchaser's investment amount under Section 2.3(a) divided by the Market Price, (iii) a legal opinion of Company Counsel in agreed form, including a UCC opinion as to the continued perfection under applicable law of the security interest in the Collateral after giving effect to the revised Article 9 of the Uniform Commercial Code, and (iv) a certificate executed by the Chief Executive Officer of the Company, dated as of the First Additional Closing Date, attesting that the representations and warranties of the Company set forth herein are true and correct as of the First Additional Closing Date as though made at that time (other than representations and warranties which relate to a specific date (which shall not include representations and warranties relating to the "date hereof") which representations and warranties shall be true as of such specific date) and that the Company has performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Additional Closing Date, and (2) the Purchaser participating in the First Additional Closing shall deliver to the Company an amount equal to its investment amount under Section 2.3(a), in United States dollars in immediately available funds by wire transfer to an account designated in writing by the Company for such purpose.

First Additional Closing. (a) At any time between the Closing Date and May 6, 2002, each Purchaser shall have the right (but not the obligation), upon a written notice Notwithstanding anything to the Company and contrary herein, the other Purchasers (the "First Additional Closing for the Additional Note will take place first (i) on the day the draft registration statement for the resale of 14,480,000 Conversion Shares by the Buyer (the “Registration Statement”) has been confidentially submitted to the SEC; and provided that the Company shall have delivered to the Buyer the SEC’s acceptance notice of such submission, no Additional Closing Notice"), or any other notice related to purchase a number of shares of the First Additional Preferred equal Closing, by the Company is required; and then (ii) on the day the Registration Statement is declared effective by the SEC; provided that the Company’s counsel has received oral confirmation from the SEC that the Registration Statement has been declared effective and has so informed Buyer, no Additional Closing Notice, or any other notice or closing documents under Section 7(b) of the SPA (except for (i) a certificate of good standing of the Company in the Cayman Islands, (ii) the applicable Additional Note, and (iii) the applicable Additional Flow of Funds Letter) related to the quotient obtained First Additional Closing, by dividing (xthe Company is required.” 2. Waive, in part, Section 7(b)(ii) of the product SPA, the requirement for a legal opinion from the Company’s U.S. counsel dated on the day of such Purchaser's Holdings Percentage and $5,750,000 by (y) 10,000each First Additional Closing. 3. The waiver of Section 1(b)(ii)(2) and Section 7(b)(ii) set forth herein constitutes a one-time waiver and is limited to the matters expressly waived herein and should not be construed as an indication that the Buyer would be willing to agree to any future modifications to, consent of, or waiver of any of the terms of any other agreement, instrument or security or any modifications to, consents of, or waiver of any default that may exist or occur thereunder. 4. The Buyer represents that it is the sole holder of the Initial Note and has the full power and authority to enter into this Agreement. 5. The Buyer acknowledges that it has had the opportunity to review this Agreement, and the transactions contemplated by this Agreement with its own legal counsel. The Buyer acknowledges that it is not relying on any statements or representations of the Company or any of the Company’s agents, including Company’s counsel, for legal advice with respect to the transactions contemplated herein. 6. Except as expressly modified by this Agreement, the terms of the SPA shall file remain in full force and effect. This Agreement is supplemental to, and forms an integral and inseparable part of the First Certificate of Designations SPA and shall be relied upon and construed together and in accordance with the Secretary SPA. In the event of any conflict between the provisions of the Agreement and the provisions of the SPA, the provisions of this Agreement shall prevail. 7. This Agreement shall be governed by the internal laws of the State of Delaware, without giving effect to any provision of law or rule (whether of the State of Delaware within two Trading Days following or any other jurisdictions) that would cause the delivery application of the initial First Additional Closing Noticelaws of any jurisdictions other than the State of Delaware. (b) On 8. This Agreement constitutes the fifth Trading Day following full and entire understanding and agreement between the delivery of a First Additional Closing Notice (each, a "First Additional Closing Date"), (1) parties with regard to the Company shall deliver to each Purchaser participating subjects hereof and thereof. 9. This Agreement may be executed in the applicable First Additional Closing (i) a stock certificate registered in the name of such Purchaser, representing the any number of shares counterparts, each of First Additional Preferred equal to the quotient obtained by dividing such Purchaser's investment amount (as determined pursuant to Section 2.3(a)) in the First Additional Closing by 10,000, (ii) a First Additional Warrant, registered in the name of such Purchaser, pursuant to which the Purchaser shall have the right to acquire on the terms set forth therein a number of Warrant Shares equal to 25% of such Purchaser's investment amount under Section 2.3(a) divided by the Market Price, (iii) a legal opinion of Company Counsel in agreed form, including a UCC opinion as to the continued perfection under applicable law of the security interest in the Collateral after giving effect to the revised Article 9 of the Uniform Commercial Code, and (iv) a certificate executed by the Chief Executive Officer of the Company, dated as of the First Additional Closing Date, attesting that the representations and warranties of the Company set forth herein are true and correct as of the First Additional Closing Date as though made at that time (other than representations and warranties which relate to a specific date (which shall not include representations and warranties relating to the "date hereof") be an original, but all of which representations and warranties together shall be true as of such specific date) and that the Company has performed, satisfied and complied with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Additional Closing Date, and (2) the Purchaser participating in the First Additional Closing shall deliver to the Company an amount equal to its investment amount under Section 2.3(a), in United States dollars in immediately available funds by wire transfer to an account designated in writing by the Company for such purposeconstitute one instrument.