Common use of Subsequent Closing Date Clause in Contracts

Subsequent Closing Date. (i) The date and time of the Subsequent Closing (the “Subsequent Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) shall be 10:00 a.m., New York City time, on the date hereof, subject to satisfaction (or waiver) of the conditions to the Subsequent Closing set forth in Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), at the offices of the Company. Any Person approved by the Company and the Required Holders may become a Subsequent Buyer and may purchase Subsequent Notes and Subsequent Warrants by duly executing and delivering a Joinder Agreement to the Company. Any Initial Buyer may also purchase, at such Initial Buyer’s option, Subsequent Notes and Subsequent Warrants by delivering written notice to the Company (each, a “Subsequent Closing Notice”). Notwithstanding anything herein, in a Joinder Agreement or in a Subsequent Closing Notice to the contrary, the number of Subsequent Notes to be purchased by the Subsequent Buyers at the Subsequent Closing shall not exceed $444,445 aggregate principal amount of Subsequent Notes. (ii) The Initial Buyers hereby consent to the transactions contemplated by this Section 1(c).

Subsequent Closing Date. The obligation of each Buyer hereunder to purchase the Subsequent Notes and the related Subsequent Warrants at the Subsequent Closing is subject to the satisfaction, at or before the Subsequent Closing Date, of each of the following conditions, provided that these conditions are for each Buyer's sole benefit and may be waived by such Buyer at any time in its sole discretion by providing the Company with prior written notice thereof: (i) The date Company shall have executed and time of delivered to such Buyer the Subsequent Closing Notes (the “Subsequent Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”) in such principal amounts as such Buyer shall be 10:00 a.m., New York City time, on the date hereof, subject to satisfaction (or waiver) of the conditions to the Subsequent Closing set forth in Sections 6(brequest) and 7(b) and the conditions contained in this Section 1(c), at the offices of the Company. Any Person approved by the Company and the Required Holders may become a Subsequent Buyer and may purchase Subsequent Notes and related Subsequent Warrants by duly executing and delivering a Joinder Agreement to the Company. Any Initial (in such amounts as such Buyer may also purchase, at such Initial Buyer’s option, Subsequent Notes and Subsequent Warrants by delivering written notice to the Company (each, a “Subsequent Closing Notice”). Notwithstanding anything herein, in a Joinder Agreement or in a Subsequent Closing Notice to the contrary, the number of Subsequent Notes to be shall request) being purchased by the Subsequent Buyers such Buyer at the Subsequent Closing shall not exceed $444,445 aggregate principal amount of Subsequent Notespursuant to this Agreement. (ii) Such Buyer shall have received the opinions of Milbank, Tweed, Hadley & McCloy LLP, the Company's outside counsel, and Brian O'Donog▇▇▇, ▇he ▇▇▇▇▇▇y's General Counsel, each dated as of the ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ing Date, in substantially the form of Exhibits H-1 and H-2 attached hereto. (iii) The Initial Buyers hereby consent Irrevocable Transfer Agent Instructions shall remain in effect as of the Subsequent Closing Date and the Company shall cause its transfer agent to deliver a letter to such Buyer to that effect. (iv) The Company shall have delivered to such Buyer a certificate evidencing the incorporation and good standing of the Company and each Subsidiary in such corporation's state of incorporation issued by the Secretary of State of such state of incorporation, to the transactions contemplated extent required by this Section 1(c3(a), as of a date within 10 days of the Subsequent Closing Date. (v) The Company shall have delivered to such Buyer a certificate evidencing the Company's qualification as a foreign corporation and good standing issued by the Secretary of State of the State of New York as of a date within 10 days of the Subsequent Closing Date. (vi) The Company shall have delivered to such Buyer a certified copy of the Certificate of Incorporation as certified by the Secretary of State of the State of Delaware within 10 days of the Subsequent Closing Date. (vii) The Company shall have delivered to such Buyer a certificate, executed by the Secretary of the Company dated as of the Subsequent Closing Date, as to (i) the Resolutions, (ii) the Certificate of Incorporation and (iii) the Bylaws, each as in effect at the Subsequent Closing, in the form attached hereto as Exhibit I. (viii) The representations and warranties of the Company shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) as of the date when made and as of the Subsequent Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects 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 Subsequent Closing Date. Such Buyer shall have received a certificate, executed by the Chief Executive Officer of the Company, dated as of the Subsequent Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by such Buyer in the form attached hereto as Exhibit J. (ix) The Company shall have delivered to such Buyer a letter from the Company's transfer agent certifying the number of shares of Common Stock outstanding as of a date within five days of the Subsequent Closing Date. (x) The Common Stock (I) shall be designated for quotation or listed on the Principal Market and (II) shall not have been suspended, as of the Subsequent Closing Date, by the SEC or the Principal Market from trading on the Principal Market nor shall suspension by the SEC or the Principal Market have been threatened, as of the Subsequent Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum listing maintenance requirements of the Principal Market. (xi) The Company shall have obtained all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Subsequent Notes and the

Subsequent Closing Date. Subject to timely delivery by the Company to the Buyers of the Subsequent Note Notice (i) The as defined below), the date and time of the Subsequent Closing (the “Subsequent Closing Date,” and together with the Initial Closing Date, each a “Closing Date” and collectively, the “Closing Dates”"SUBSEQUENT CLOSING DATE") shall be 10:00 a.m., New York City timeTime, on the date hereofspecified in the Subsequent Note Notice (which date shall not be later than July 15, 2003), subject to satisfaction (or waiver) of the conditions to the Subsequent Closing set forth in Sections 6(b) and 7(b) and the conditions set forth in this Section 1(c) (or such later date as is mutually agreed to by the Company and the Buyers). Subject to the requirements of Sections 6(b) and 7(b) and the conditions contained in this Section 1(c), at the offices of the Company. Any Person approved by the Company and the Required Holders on one occasion may become a Subsequent require each Buyer and may severally, but not jointly, to purchase up to such principal amount of Subsequent Notes and as is set forth opposite such Buyer's name in column (4) on the Schedule of Buyers on the Subsequent Warrants by duly executing and delivering a Joinder Agreement to the Company. Any Initial Buyer may also purchase, at such Initial Buyer’s option, Subsequent Notes and Subsequent Warrants Closing Date by delivering written notice (the "SUBSEQUENT NOTE NOTICE") to each Buyer on or prior to June 30, 2003 (the "SUBSEQUENT NOTE NOTICE Date"). The Subsequent Note Notice shall be irrevocable and shall be delivered to each Buyer at least 10 Business Days (as defined below) prior to the Company (each, a “Subsequent Closing Date set forth in the Subsequent Note Notice”). The Company's Subsequent Note Notice shall set forth (i) each Buyer's pro rata allocation (based on the principal amount of Subsequent Notes as is set forth opposite each such Buyer's name in column (4) on the Schedule of Buyers in relation to $7,000,000) of the aggregate principal amount of Subsequent Notes (which aggregate principal amount shall not exceed $7,000,000) and related Subsequent Warrants which the Company is requiring all of the Buyers to purchase at the Subsequent Closing and (ii) the aggregate Purchase Price for each such Buyer's Subsequent Notes and related Subsequent Warrants. Notwithstanding anything herein, in a Joinder this Agreement or in a Subsequent Closing Notice to the contrary, the number of Company shall not be entitled to require the Buyers to purchase the Subsequent Notes unless, in addition to be purchased by the Subsequent Buyers at requirements of Sections 6(b) and 7(b), all of the following conditions are satisfied: (i) on each day during the period beginning on the first day of the Measuring Period (as defined below) and ending on the Subsequent Closing Date, the Registration Statement (as defined in the Registration Rights Agreement) covering the Initial Registrable Securities (as defined in the Registration Rights Agreement) (the "INITIAL REGISTRATION STATEMENT") shall not exceed $444,445 aggregate principal amount be effective and available for the sale of Subsequent Notes. (ii) The Initial Buyers hereby consent to the transactions contemplated by this Section 1(c).at least all of the