Common use of Second Closing Clause in Contracts

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of M▇▇▇▇▇▇ Malizia Spidi & F▇Fi▇▇▇, PC ▇▇ located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇27 25th Street, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date ▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇te or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "“Second Closing Date."” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by each Investor of its pro rata share the Investors of $16,942,000 22,458,000 (the "“Second Purchase Price" ” and together with the Initial Purchase Price, the "“Purchase Price"”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "“Conversion Shares"”) would cause the Investors an Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors such Investor will not be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) The obligation of the conditions Company to closing set forth in Section 1.2(d)issue, the second closing (the "Second Closing") shall take place at a time sell and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (at the "Conversion Shares") would cause Second Closing is subject to the Investors or their Affiliates fulfillment to be deemed for purposes the reasonable satisfaction of the BHC Act Company at or prior to own 10% or more the Second Closing of the following conditions: (a) The Second Closing Investors shall have delivered the Second Purchase Price in accordance with Section 2.4(b); (b) Each Second Closing Investor shall have delivered its executed counterpart signature page to this Agreement; (c) The Amended and Restated Shareholders Agreement, duly executed by the New Series B Investors and the holders of at least a majority of the outstanding shares of Common Stock on a fully-diluted basis, including a majority of the Series A Preferred Stock voting as a separate class and on a fully-diluted and as converted basis; (d) The First Amendment to Registration Rights Agreement, duly executed by a majority of the holders of Registrable Securities (as defined the Original Registration Rights Agreement); (e) Each of the representations and warranties of the Investors contained in Article VIII shall be true, correct and complete in all material respects on and as of the Second Closing Date as though then made, except for such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified. (f) Section 7.4(a) of the Series A Preferred Stock Purchase Agreement shall be amended to read in its entirety as follows: (a) (i) As of the First Closing, the authorized capital stock of the Company consisted solely of (1) ten million (10,000,000) shares of Common Stock, of which 1,696,284 shares were issued and outstanding; and (2) three million (3,000,000) shares of preferred stock, $.0001 par value per share, of which 2,250,000 shares had been designated as Series A Preferred Stock and 962,101 shares were issued and outstanding. The Company had reserved for issuance (x) sufficient shares of Common Stock for issuance upon conversion or redemption of all outstanding or authorized Series A Preferred Shares and (y) 2,100,000 shares of Common Stock upon exercise of options pursuant to its 2004 Stock Option Incentive Plan. Immediately after the First Closing, the capitalization of the Company was as set forth in the Capitalization Schedule attached to Schedule 7.4, which Capitalization Schedule and Schedule 7.4 (A) reflected the capitalization of the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the exercise of all outstanding options and warrants and all options reserved for future grant under any class stock option plans and (B) set forth (I) each outstanding option, warrant or other right to purchase shares of voting securities capital stock of the Company or to otherwise control any of its Subsidiaries and (II) for each such option, warrant or right, the Companyholder thereof, then the date of grant, the exercise price and the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiessubject thereto.

Second Closing. (1a) Subject to the satisfaction (orterms of this Agreement, where permissible, waiver) the closing of the conditions to closing set forth in Section 1.2(d), purchase and sale of the second closing Second Closing Securities (the "“Second Closing"”) shall take place remotely via the exchange of documents and signatures at a time and date as such place, orally or in writing, (i) in the event the Company shall be agreed upon consummate the transactions contemplated by the parties heretoMerger Agreement (including without limitation the closing of the Mergers), but in no event later than upon the tenth business day after earlier of (x) the date of satisfaction or waiver the closing of the last first public offering (the “Follow-On Offering”) of Pubco following the closing of the conditions specified Mergers, and (y) the one hundred and thirty-fifth (135th) day following the Merger Closing Date (or, if such one hundred and thirty-fifth (135th) day is not a business day, then on the first business day following such one hundred and thirty-fifth (135th) day); or (ii) in Section 1.2(d)the event of the termination of the Merger Agreement, by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate on the First Closing, to tenth (10th) business day following the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Datesuch termination." (2b) Subject to the satisfaction of the conditions described in Section 1.2(d), at At the Second Closing, the Company or Pubco, as applicable, will sell and issue to each of the Purchasers, and each of the Purchasers will purchase: (i) in the event the Second Closing occurs pursuant to Section 1.4(a)(i)(x) above, each Purchaser hereby commits to purchase, as a participant in a concurrent private placement and pursuant to the same terms and at the same price of the Follow-On Offering, a number of Pubco Shares equal to (x) the dollar amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto divided by (y) the public offering price per share (before any underwriting discount) set forth on the cover of the final prospectus used in connection with the Follow-On Offering; (ii) in the event that the Second Closing occurs pursuant to Section 1.4(a)(i)(y) above, a number of Pubco Shares equal to (x) the dollar amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto divided by (y) the greater of (1) an amount equal to ninety million dollars ($90,000,000) divided by the total number of shares outstanding on the third business day prior to the date of such Closing and (2) the Average VWAP per share of common stock of Pubco during the thirty (30) day period ending on the third business day prior to the date of such Closing; or (iii) in the event that the Second Closing occurs pursuant to Section 1.4(a)(ii) above, Second Closing Notes with a principal face amount equal to the dollar amount set forth opposite such Purchaser’s name under the heading “Remaining Commitment” on Exhibit A-1 hereto. (c) At the Second Closing, in the event it occurs pursuant to Section 1.4(a)(ii) above, the Company shall deliver to each Purchaser a Note representing the Investors one or more certificates bearing principal face amount set forth opposite such Purchaser’s name under the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock heading “Remaining Commitment” on Exhibit A-1 hereto, against payment of the purchase price therefor by each Investor of its pro rata share of $16,942,000 (x) check payable to the "Second Purchase Price" and together with the Initial Purchase PriceCompany, the "Purchase Price"(y) by wire transfer of immediately available United States funds to a the bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares , or (z) any combination of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesmethods.

Second Closing. (1) Subject to On the satisfaction (orSecond Closing Date, where permissible, waiver) substantially concurrent with the execution and delivery of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon this Agreement by the parties hereto, but the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of up to $[___ million of Class A Units or Class B Units as calculated pursuant to Section 2.2(a). The Second Closing shall occur on, or as soon as reasonably practicable following, and in no any event later than the tenth business day after within 5 Trading days of, the date of satisfaction or waiver of on which, Shareholder Approval is deemed obtained and effective. Notwithstanding anything herein to the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closingcontrary, to the offices extent that a Purchaser determines, in its sole discretion, that such Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of M▇▇▇▇▇▇ Spidi & F▇▇▇▇such Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed 4.99% (or, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇the election of the Purchaser, ▇.▇.9.99%) of the outstanding Ordinary Shares, ▇▇▇▇▇▇▇▇▇▇such Purchaser may elect to purchase Class B Units in lieu of Class A Units as determined pursuant to Section 2.2(a); provided, ▇.▇however, that, in the event that a Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed 19.99% of the outstanding Ordinary Shares, in lieu of Ordinary Shares in excess of such amount, such Purchaser shall be issued Class B Units as determined pursuant to Section 2.2(a). ▇▇▇▇▇, or Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such other date or location as agreed by Purchaser shall be made available for “Delivery Versus Payment” settlement with the parties in writingCompany. The date of Company shall deliver to each Purchaser its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Second Closing is referred to as Company and each Purchaser shall deliver the "Second Closing Date." (2) Subject to the satisfaction of the conditions described other items set forth in Section 1.2(d), 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Second Closing Date, the Company will deliver shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the Investors one or more certificates bearing account(s) at the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment Placement Agent identified by each Investor Purchaser; upon receipt of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Pricesuch Shares, the "Purchase Price"Placement Agent shall promptly deliver electronically such Shares and the Warrants in physical form to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that ). The Company covenants that, if the Common Shares issued at the First Closing and the shares Purchaser delivers a Notice of Common Stock issuable upon the conversion of Exercise (as defined in the Series B Preferred Shares Warrants) at least one (the "Conversion Shares"1) would cause the Investors or their Affiliates Trading Day prior to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced Date to the highest number of exercise any Series B Preferred Shares at a purchase price per share of $1,000 (Warrants between the date hereof and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of Closing Date, the Company or shall deliver Ordinary Shares with respect to otherwise control the Company. Any determinations under Series B Warrants to the proviso Purchaser on the Second Closing Date in connection with such Notice of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesExercise.

Second Closing. (1) Subject Upon the terms and subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d)this Agreement, the second closing (the "Second Closing"Closing ) shall take place at a time and date within five (5) days following the Milestone Target Payment Date applicable to Milestone 1 (as shall be agreed defined in the Joint Development Agreement) upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described set forth in Section 1.2(d5.2 and Section 6.2 applicable to the Second Closing (or such other time and place as the Parties may agree) (the Second Closing Date ). At the Second Closing, the following shall occur: (a) in the event the Purchaser elects to purchase Series B Preferred at the Second Closing, the Purchaser shall deliver to the Company an amount in United States dollars ( U.S. Dollars ) in immediately available funds that is not greater than the Maximum Total Series B Investment (such actual amount being the Second Closing Payment ), and, in exchange therefor, the Company shall issue and sell to the Purchaser, and the Purchaser shall accept (subject to Section 1.9), a number of shares of Series B-1 Preferred equal to (x) the Second Closing Payment divided by (y) the Series B-1 Purchase Price (as defined in the Series B Certificate of Designations); (b) in the event the Purchaser elects to pay to the Company the Second Closing Payment specified above, the Company shall execute and deliver a warrant substantially in the form of Exhibit G hereto (the Warrant ) in favor of the Purchaser, convertible into such number of shares of Common Stock equal to 25% of the number of shares of Common Stock into which the Series B-1 Preferred purchased pursuant to Section 1.2(a) above are convertible on the date of issuance of the Series B-1 Preferred; (c) provided that the Purchaser makes the Minimum Series B Investment at the Second Closing, the Company will shall issue to the Purchaser, and the Purchaser may choose to accept (at its sole discretion, subject to Section 1.8 and Section 1.9), such number of shares of Series A-1 Preferred that equal, when combined with such number of the Series B-1 Preferred and Warrants, if any, purchased by the Purchaser at the Second Closing up to the Minimum Series B Investment, a 4% Ownership Interest. For purposes of clarity, in the event that the Purchaser elects to invest more than the Minimum Series B Investment at the Second Closing, only such number of Series B-1 Preferred and Warrants as would have been purchased with the Minimum Series B Investment shall be counted in determining the 4% Ownership Interest. Notwithstanding the foregoing, the Company shall issue to the Purchaser a number of shares of Series A-1 Preferred with a Series A Liquidation Value equal to at least $1,250,000, regardless of whether such number of shares results in the Purchaser acquiring greater than a 4% Ownership Interest at the Second Closing (but in no event shall Purchaser acquire greater than a 10% Ownership Interest at the Second Closing, without regard to the Ownership Interest acquired by Purchaser at any prior Closing), provided, however, that, in the event the Purchaser does not elect to pay the Company at least the Minimum Series B Investment at the Second Closing, the Company shall issue to the Purchaser, and the Purchaser shall be entitled to receive, only the greater of (i) a number of shares of Series A-1 Preferred equal to a 2% Ownership Interest, and (ii) a number of shares of Series A-1 Preferred with a Series A Liquidation Value equal to $625,000, but not in any event to exceed a maximum 2% Ownership Interest; (d) the Company shall deliver an Opinion of Counsel applicable to the Second Closing; (e) updated Schedules to this Agreement (which update of the representations and warranties shall reflect that a Material Adverse Effect has not occurred since the prior Closing); (f) the President of the Company shall deliver to the Investors one or more certificates bearing Purchaser a certificate certifying that the appropriate legends herein provided for conditions specified in Section 5.2(a) and free and clear Section 5.2(b) applicable to the Second Closing have been fulfilled; (g) the Company shall reserve a sufficient number of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon to account for the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more all of the outstanding shares Preferred Shares plus the exercise of any class of voting securities all of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at outstanding Warrants (taking into account the Second Closing shall be reduced to and including any Deferred Securities under Section 1.8 and Excess Shares under Section 1.9); and (h) the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (Company and the Second Purchase Price Purchaser shall execute and deliver any other documents and agreements necessary or desirable to accomplish the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesforegoing.

Second Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) The Closing of the conditions to closing sale and purchase of the Shares as set forth in Section 1.2(d), on Exhibit A under the second closing heading "Second Closing" (the "Second Closing") -------------- shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Ma Handler ▇▇▇▇▇▇▇▇ Spidi ▇▇▇▇▇▇ Landau & F▇▇▇▇▇▇, PC located at 1▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, within thirty (30) days after the Second Closing Conditions (as defined below) are met (the "Second Closing -------------- Date"). The First Closing and the Second Closing are sometimes referred to ---- hereinafter collectively as the "Closings" and individually as a "Closing". The -------- ------- parties hereto acknowledge that the price per Share to be paid by the Purchasers at the Second Closing (the "Second Closing Price") shall be $15,000,000 divided by (4,595,066+a) if the Purchasers reasonably determine that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have been fulfilled --------- within 90 days after the First Closing and $12,000,000 divided by (4,595,066+x) per Share if the Purchasers reasonably determine that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have been fulfilled 90 days or more --------- after the First Closing. As used in the preceding sentence, 'x' equals the number of Shares sold at the First Closing. Thus, if 540,541 Shares are sold at the First Closing and the milestone conditions set forth on Exhibit C are --------- fulfilled within 90 days after the First Closing, the price per Share payable by the Purchasers at the Second Closing shall be $2.92 per Share. (a) The obligation of the Purchasers to purchase Shares at the Second Closing is conditioned upon fulfillment of the milestone conditions set forth on Exhibit C hereto (the "Second Closing Conditions"). At the Second Closing, the --------- ---------------------------- Company will deliver to each of the Purchasers a certificate for the number of shares being purchased by such Purchaser, registered in the name of such Purchaser, against payment to the Company of the purchase price therefor, by wire transfer, check, or other method acceptable to the Company. If at the Second Closing any of the conditions specified in Section 7 shall not have been fulfilled, each of the Purchasers shall, at his or its election, be relieved of all of his or its obligations under this Agreement without thereby waiving any of the rights he or it may have by reason of such failure or such non- fulfillment. (c) Notwithstanding the provisions of Sections 2.2(a) and (a) above, upon a reasonable determination by the Purchasers prior to December 31, 1989 that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have --------- been fulfilled, the Purchasers shall deposit with ▇▇▇▇ and ▇▇▇▇ ("Escrow Agent") ------------ the amount of the purchase price set forth on Exhibit A under the heading --------- "Second Closing." Such amount shall be held by Escrow Agent pursuant to the terms of an Escrow Agreement in the form of Exhibit D until the earlier of (a) --------- receipt by Escrow Agent of a notice signed on behalf of the Company and each Purchaser that the milestone condition set forth as paragraph 3 of Exhibit C has --------- been fulfilled (the "Confirmation Notice"), or (ii) June 30, 1990. If the ------------------- Escrow Agent receives the Confirmation Notice prior to June 30, 1990, the Escrow Agent shall pay such escrowed amount, plus all interest earned thereon, to the Company. If the Escrow Agent does not receive the Confirmation Notice prior to June 30, 1990, the Escrow Agent shall pay such escrowed amount, plus all interest earned thereon, to the Purchasers and all obligations of the Purchasers with respect to the Second Closing shall cease. (a) Notwithstanding the provisions of Section 2.2(a), affiliates of GenAm (U.S.), Inc., Advent International Corporation, a Venture Capital Corporation, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ Associates or Ventures West Management III, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by Ltd. shall have the parties in writing. The date of the Second Closing is referred right to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common purchase Shares issued at the First Closing Price and shall be deemed to have purchased such Shares at the shares of Common Stock issuable upon First Closing, if such Shares are purchased within thirty (30) days after the conversion First Closing. The parties hereto acknowledge that the Company shall have the right prior to December 31, 1989 to issue and sell Shares to entities who are not parties to this Agreement, which such entities shall be entitled to all of the Series B Preferred rights of Purchasers hereunder, provided that the purchase of Shares by such entities is approved by at least two-thirds (the "Conversion Shares"2/3) would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the CompanyPurchasers, then the number of Series B Preferred Shares to be purchased at that such entities pay the Second Closing shall Price for such Shares and that such entities agree to be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes bound by all of the BHC Act to own 10% or more obligations of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesPurchasers hereunder.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "“Second Closing Date."” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by each Investor of its pro rata share the Investors of $16,942,000 22,458,000 (the "“Second Purchase Price" ” and together with the Initial Purchase Price, the "“Purchase Price"”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "“Conversion Shares"”) would cause the Investors an Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors such Investor will not be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, or waiver) of the conditions to closing set forth in Section 1.2(dSections 6 and 7 below, in consideration for the payment of each Buyer’s payment of its pro rata share of the Second Purchase Price (as defined below) (i) the Company shall issue and sell to each Buyer, and each Buyer agrees to purchase from the Company on the Second Closing Date (as defined below), the second Debenture in the principal amount set forth opposite such Buyer’s name in column (5) on the Schedule of Buyers. The closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon of the purchase of the Securities by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to Buyers shall occur at the offices of M▇▇▇▇▇▇▇▇ Spidi Will & FE▇▇▇▇ LLP, 3▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date and time of the Second Closing is referred to as (the "“Second Closing Date." ”) shall be 10:00 a.m., New York City time, on the date hereof, subject to notification of satisfaction (2or waiver) Subject to the satisfaction of the conditions described to the Second Closing set forth in Section 1.2(dSections 6 and 7 below (or such later date as is mutually agreed to by the Company, Parent and the Buyers). The aggregate purchase price (the “Second Purchase Price”) of the Debentures to be purchased by the Buyers at the Second Closing shall be equal to $3,000,000. On the Second Closing Date, (i) each Buyer shall pay its pro rata share of the Second Purchase Price to the Company for the Debenture to be issued and sold to such Buyer at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds in accordance with Company’s written wire instructions, (ii) the Company shall deliver to a bank account designated by the Company; provided that if Buyers the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities Debenture which such Buyer is then purchasing, duly executed on behalf of the Company and registered in the name of such Buyer or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesits designee.

Second Closing. (1i) Subject to and in reliance upon the representations and warranties set forth in Section 3 below, and the satisfaction (or, where permissible, or waiver) of the conditions to closing set forth in Section 1.2(dSections 6 and 7 below, (i) the Company shall issue and sell to each Buyer, and each Buyer severally, but not jointly, agrees to purchase from the Company on the Second Closing Date (as defined below), a principal amount of Debentures as is set forth opposite such Buyer’s name in column (5) on the second Schedule of Buyers and (ii) the Company shall deliver or cause to be delivered to each Buyer on the Second Closing Date the number of Closing Securities as is set forth opposite such Buyer’s name in column (6) on the Schedule of Buyers. The aggregate purchase price (the “Second Purchase Price”) of the of the Debentures and Closing Securities to be purchased by the Buyers at the Second Closing shall be equal to $2,700,000. The closing (the "“Second Closing"”) shall take place at a time of the purchase of the Debentures and date as shall be agreed upon the Closing Securities by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to Buyers shall occur at the offices of M▇▇▇▇▇▇▇▇▇ Spidi Will & F▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, or such other date or location as agreed by the parties in writing. The date and time of the Closing (the “Second Closing Date”) shall be 10:00 a.m., New York City Time, on or before June 8, 2007. (ii) On the Second Closing is referred to as the "Date, (i) each Buyer shall pay its aggregate Second Closing Date." (2) Subject Purchase Price to the satisfaction of Company for the conditions described in Section 1.2(d), Debentures and Closing Securities to be issued and sold to such Buyer at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds in accordance with Company’s written wire instructions, (ii) the Company shall deliver to a bank account designated by each Buyer (A) the Company; provided that if Debentures (in the Common Shares issued at denominations as such Buyer shall have requested prior to the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares"Closing) would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities which such Buyer is then purchasing, duly executed on behalf of the Company and registered in the name of such Buyer or to otherwise control its designee and (B) the Company, then Closing Securities (in the number of Series B Preferred Shares to be purchased at the Second Closing denominations as such Buyer shall be reduced have requested prior to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordinglyClosing) which such that the Investors will not be deemed for purposes Buyer is then purchasing, duly executed on behalf of the BHC Act to own 10% Parent and registered in the name of such Buyer or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesits designee.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) 4.2.1 The closing of the conditions to closing set forth in Section 1.2(d)issuance by the Company, and acquisition/purchase by the second closing Purchasers, of the Preferred Shares and Additional Preferred Shares hereunder (the "Second SECOND Closing") shall take place (a) at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of MBrow▇▇▇▇▇▇ Spidi & F▇▇▇t▇ & ▇arb▇▇, PC located at 1▇▇▇ .C., 410 ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇ ▇▇▇▇▇, ▇▇ the forty-sixth (46th) day immediately following the FCC Approval Date, provided that all of the conditions to the Second Closing, as set forth in Section 9 below, have been fully satisfied as of that date (or one or more such other date or location as agreed conditions have been waived by the parties in writing. The date Purchasers and/or the Company, as the case may be) or, if all of such conditions to the Second Closing is referred to have not been satisfied (or waived, as the "Second Closing Date." case may be) by such forty-sixth (246th) Subject day, then on the first day thereafter that all of such conditions have been fully satisfied (or waived as the case may be) or (b) at such other place and time as may be mutually agreeable to the satisfaction of Company and the conditions described in Section 1.2(d), at Purchasers. At the Second Closing, the Company will shall deliver to each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Investors one or more Company) stock certificates bearing evidencing the appropriate legends herein provided for Preferred Shares and free and clear of all Liens representing 16,942 shares of Series B Additional Preferred Stock against payment by Shares it is acquiring hereunder (in each Investor case in the number set forth opposite each Purchaser's name on SCHEDULE II hereto) upon receipt (a) from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Company) of its pro rata share of $16,942,000 Note (for which the Preferred Shares are being issued pursuant to the Note Conversion procedures set forth in Section 5.4 below) marked "Second Purchase PricePaid In Full" and together with (b) payment from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Initial Purchase Price, Company) of the "Purchase Price"aggregate purchase price for its Additional Preferred Shares (as set forth on SCHEDULE II hereto) by a cashier's or certified check or by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if 's account at Norwest Bank of Colorado, ABA #1020▇▇▇▇▇, ▇▇count #1078▇▇▇▇▇▇, ▇▇ntact: Paul ▇▇▇▇▇▇▇▇. ▇▇ch stock certificate evidencing the Common Preferred Shares and Additional Preferred Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares to each Purchaser (the "Conversion Shares") would cause the Investors or their Affiliates other than a Purchaser that has timely delivered a Notice Not to be deemed for purposes of the BHC Act Close to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company), then the number of Series B Preferred Shares upon issuance to be purchased at the Second Closing thereof, shall be reduced to duly executed by an authorized officer or officers, as the highest number case may be, of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under Notwithstanding anything herein to the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.contrary, any Purchaser that timely delivers a Notice Not

Second Closing. (1) Subject Upon the terms and subject to the satisfaction (orconditions of this Agreement, where permissible, waiver) of at the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing, each of CMBP II, CMBCV and 55th Street (collectively, th▇ ") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of M▇▇▇▇▇▇ Spidi & F▇▇▇▇, PC located at 1▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇ent Purchasers") hereby agrees to purchase from the Company the number of Shares and warrants to purchase Shares in the form of Exhibit B hereto (the "Subsequent Warrants" and, ▇.▇. ▇▇▇▇▇collectively with the Initial Warrants, or such other date or location as agreed by the parties in writing. The date "Warrants") set forth opposite its name on Schedule 2.2(b)(ii), and the Company hereby agrees to issue, sell and deliver to the Subsequent Purchasers against payment of the Second Closing is referred to as purchase price in immediately available funds an aggregate number of Shares determined in accordance with the next succeeding sentence (the "Second Closing Date.Subsequent New Shares " and, collectively with the Initial New Shares, the " New Shares") and Warrants to purchase an aggregate number of Shares determined in accordance with the second succeeding sentence, in each case, free and clear of all Encumbrances, for an aggregate purchase price of not less than $50.0 million and not greater than $75.0 million (2the "Subsequent New Shares Purchase Price" and, collectively with the Initial New Shares Purchase Price, the "New Shares Purchase Price"), as determined in accordance with Section 5.3(iv) Subject to the satisfaction of the conditions described in Section 1.2(d), at Stockholders Agreement. At the Second Closing, the Company will issue, sell and deliver to the Investors one or more certificates bearing Subsequent Purchasers and the appropriate legends herein Subsequent Purchasers will purchase from the Company an aggregate number of Subsequent New Shares equal to the quotient of the Subsequent New Shares Purchase Price divided by $16.00. At the Second Closing, the Company will issue, sell and deliver to the Subsequent Purchasers and the Subsequent Purchasers will purchase from the Company Subsequent Warrants to purchase an aggregate number of Shares (without giving effect to any adjustment as provided for in the Subsequent Warrants) equal to the product of the Subsequent New Shares Purchase Price multiplied by 0.0045. The purchase by the Subsequent Purchasers of the Subsequent New Shares and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the Subsequent Warrants is hereinafter collectively referred to as the "Second Purchase Price" and together with the Initial Purchase Price, the Subsequent Purchase"Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.