Common use of The Second Closing Clause in Contracts

The Second Closing. (a) The closing of the purchase and sale of the Second Closing Shares (the "SECOND CLOSING"), shall take place at the offices of the Investors' counsel, at 10:00 am., local time on: (i) the latest of: (A) ten days after written notice from CDRD electing to sell the Second Closing Shares to Investors ("SECOND CLOSING NOTICE"), which Second Closing Notice shall be delivered to the Investors not earlier than the First Closing Date and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable to the Second Closing shall be fulfilled or waived in accordance herewith, provided such date is not later than 35 days after the First Closing Date; or The date on which the Second Closing occurs is referred to herein as the "SECOND CLOSING DATE." (b) On the Second Closing Date, if any, CDRD shall deliver to each Investor certificates (with the number of and denomination of such certificates designated by such Investor) representing the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2, such Warrants, purchased by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not later than two business days prior to the Second Closing Date.

The Second Closing. After the Initial Closing and the Follow-On Closing, the Company shall sell, and the Purchasers shall purchase, Notes in the principal amounts set forth opposite each Purchaser’s name on Exhibit A (afor Initial Purchasers) The closing or Exhibit B (for Additional Purchasers) under the heading “Principal Amount of Notes to Be Purchased at the Second Closing.” Such purchase and sale of the Second Closing Shares (the "SECOND CLOSING"), shall take place at a closing (the offices of “Second Closing” and together with the Investors' counselInitial Closing, at 10:00 am.the Follow-On Closing and the Final Closing (as defined below), local time on: the “Closings” and each individually a “Closing”) to be held no sooner than five (i5) days and no later than ten (10) days following the latest of: approval by (A) ten days after written notice from CDRD electing to sell the Second Closing Shares to Investors ("SECOND CLOSING NOTICE"), which Second Closing Notice shall be delivered to Board of Directors of the Investors not earlier than the First Closing Date Company and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived Purchasers holding at least sixty-six and two-thirds percent (66 2/3%) of the conditions set forth in Article IV hereof principal amount of the outstanding Notes then held by all Purchasers of (i) a business plan and applicable to strategy for monetization of the Company’s corn CBP business and (ii) a plan for near- term acquisition opportunities for the Company (the “Second Closing Approval”); provided that if the Second Closing Approval does not occur on or before June 15, 2010, the Purchasers shall be fulfilled or waived in accordance herewithrelieved of their obligation to purchase any additional Notes hereunder. Notwithstanding the foregoing, provided such date is not later than 35 days after the First Closing Date; or The date on which if a Purchaser (an “Opting Out Purchaser”) obligated to purchase a Note at the Second Closing occurs is referred chooses not to herein as the "SECOND CLOSING DATE." (b) On purchase such Note at the Second Closing Date, if any, CDRD shall deliver to each Investor certificates (with the number of and denomination of such certificates designated by such Investor) representing the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2Closing, such WarrantsOpting Out Purchaser shall be relieved of its obligation to purchase such Note, purchased by but such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor Opting Out Purchaser shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing be subject to the Investors not later than Mandatory Conversion described in Section 1.02(e). Each Purchaser shall give the Company notice, at least two business (2) days prior to the Second Closing, if such Purchaser shall be an Opting Out Purchaser. Any Notes not purchased at the Second Closing Dateby Opting Out Purchasers may be purchased at a final closing to be held within ten (10) days following the Second Closing (the “Final Closing”) by the other Purchasers on a pro rata basis to the Notes purchased by such other Purchasers or on such other basis as may be agreed upon by the Company and the Purchasers holding at least 66 2/3% of the principal outstanding under the then outstanding Notes. For purposes of this Agreement, the additional Notes purchased in the Final Closing by Purchasers are the “Additional Opt Out Notes,” and together with the Additional Follow-On Notes, the “Additional Notes”.

The Second Closing. Upon the hiring by the Company of a Chief Executive Officer acceptable to Investors holding a majority in interest of the Shares on or before December 31, 1999 (awhich acceptance shall be evidenced by a written consent signed by holders of a majority in interest of the Shares) The (the "Second Closing Milestone"), the Company shall deliver to each of the Investors a notice (the "Second Closing Notice") of the attainment of the Second Closing Milestone and specifying a date (the "Second Closing Date") for the closing (the "Second Closing"; the Initial Closing and the Second Closing are referred to individually as a "Closing" and collectively as the "Closings") of the purchase and sale sales of the number of shares of Series A-2 Preferred Stock listed on Schedule II, which date shall not be less than five or more than 25 days following the date of delivery of the Second Closing Shares (the "SECOND CLOSING"), Notice. The Second Closing shall take place at the offices of the Investors' counselPaul, at 10:00 am.Hastings, local time on: (i) the latest of: (A) ten days after written notice from CDRD electing to sell ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇. At the Second Closing Shares to Investors ("SECOND CLOSING NOTICE")Closing, which Second Closing Notice shall be delivered to the Investors not earlier than the First Closing Date and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable to the Second Closing shall be fulfilled or waived in accordance herewith, provided such date is not later than 35 days after the First Closing Date; or The date on which the Second Closing occurs is referred to herein as the "SECOND CLOSING DATE." (b) On the Second Closing Date, if any, CDRD Company shall deliver to each Investor certificates (with the a certificate representing that number of and denomination the shares of such certificates designated by such Investor) representing the Second Closing Shares and, if Warrants are then issuable pursuant Series A-2 Preferred Stock to Section 3.2, such Warrants, purchased be acquired by such Investor under this Agreement registered in the name of such the Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by set forth on Schedule II opposite the name of such Investor, and such Investor shall deliver ) against delivery to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement Company by wire transfer in of immediately available funds in the amount set forth opposite to such account as CDRD designates Investor's name on Schedule II, or cancellation of indebtedness, or any combination thereof. If, at the Second Closing, any of the conditions specified in writing to Section 4 of this Agreement shall not have been fulfilled, each of the Investors not later than two business days prior shall, at its election, be relieved of its then remaining obligations under this Agreement. Notwithstanding the foregoing, the Investors shall have no obligation to purchase the shares of Series A-2 Preferred Stock set forth on Schedule II if the Second Closing DateMilestone has not occurred on or before December 31, 1999.

The Second Closing. 2.1. The Investor Interests. (a) The closing At the Second Closing, each New Investor and each Existing Investor (collectively, the "Second Closing Investors") shall, severally and not jointly (subject to the second sentence of Section 2.3(b)), purchase from Newco LP, and Newco LP shall sell to such Second Closing Investor, the number of Class A Preferred Units in Newco LP described opposite such Second Closing Investor's name on Schedule IV (or such greater number in accordance with Section 2.2)(collectively, the "Investor Interests") for the purchase and sale of price indicated on Schedule IV, which shall result in an aggregate purchase price to be paid by the Second Closing Shares Investors for all of the Investor Interests to be purchased at the Second Closing of Fifty Million Dollars (US$50,000,000) (the "SECOND CLOSINGInvestor Purchase Price"), shall take place at the offices of the Investors' counsel, at 10:00 am., local time on: (i) the latest of: (A) ten days after written notice from CDRD electing to sell . Following the Second Closing Shares Closing, if no adjustment to Investors ("SECOND CLOSING NOTICE")the Per Unit Purchase Price is made pursuant to Section 2.2 hereof, which Second Closing Notice Newco LP shall be delivered to the Investors not earlier than the First Closing Date and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions owned as set forth in Article IV hereof and applicable to the Second Closing shall be fulfilled or waived in accordance herewith, provided such date is not later than 35 days after the First Closing Date; or The date on which the Second Closing occurs is referred to herein as the "SECOND CLOSING DATESchedule VI hereto." (b) On Notwithstanding the Second Closing Dateother provisions of this Agreement, if any, CDRD shall deliver to each Investor certificates (with the number of and denomination of such certificates designated by such Investor) representing the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2, such Warrants, purchased by such Investor under this Agreement registered in the name event that, at the request of such Investor (or its nominee) or deposit such Second Closing Shares and WarrantsNewco LP, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not later than two business days prior to the Second Closing Dateany of the Second Closing Investors (each, a "Pre-Funding Investor") provide additional capital ("Pre-Funded Capital") to Newco LP after the First Closing (whether in the form of the purchase of additional Units or otherwise), then if such Pre-Funding Investor so elects at the time of the funding of such Pre-Funded Capital, the amount of the Pre-Funded Capital funded by such Pre-Funding Investor shall be deducted from the Investor Purchase Price payable at the Second Closing by such electing Pre-Funding Investor and the amount of Class A Preferred Units to be purchased at the Second Closing by such Pre-Funding Investor shall be proportionately reduced; provided, that in no event shall such elections reduce the total Investor Purchase Price by more than $10,000,000 in the aggregate. For the avoidance of doubt, any funding of Pre-Funding Capital shall not be deemed to be the Second Closing for any purpose hereunder.

The Second Closing. (a) The closing of Company’s obligation to complete the purchase and sale of the Additional Securities and deliver certificates representing such securities to the Purchaser at the Second Closing Shares shall be subject to the following conditions, any one of which may be waived by the Company: (i) receipt by the Company of same-day funds in the full amount of the purchase price for the Additional Securities being purchased hereunder; (ii) the accuracy in all material respects of the representations and warranties made by the Purchaser (as if such representations and warranties were made on the Second Closing Date) and the fulfillment of those undertakings of the Purchaser to be fulfilled prior to the Second Closing; (iii) the sale of the Additional Securities shall not be prohibited by any law or governmental law or governmental order or regulation; (iv) the Company shall have obtained the requisite stockholder approval via written consent (the "SECOND CLOSING"), shall take place “Stockholder Approval”) for the issuance of the Additional Securities at the offices Second Closing (together with the Initial Securities) and the Anti-Dilution Shares in a manner that complies with Section 705 of the Investors' counselAmerican Stock Exchange Company Guide and all other relevant rules and regulations of the American Stock Exchange; and (v) simultaneously with, at 10:00 am.or prior to, local time on: the Second Closing, the Company shall have sold shares of Common Stock and Warrants to third party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum of $11 million, which shares of Common Stock and Warrants shall be sold to such third party purchasers on the same terms and conditions as are set forth herein. The Purchaser’s obligation to accept delivery of such certificates and to pay for the Additional Securities evidenced thereby shall be subject to the following conditions, any one or more of which may be waived by the Placement Agent after consultation with the Purchaser: (i) the latest of: (A) ten days after written notice from CDRD electing to sell Company shall have scheduled the Second Closing Shares to Investors ("SECOND CLOSING NOTICE"), which Second Closing Notice shall be delivered for a date on or prior to the Investors not earlier than 45th day following the First Closing Date and not later than fifteen days after the First Initial Closing Date; and (Bii) each of the representations and warranties of the Company made herein shall be accurate in all material respects as of the Second Closing Date; (iii) the delivery to the Purchaser by counsel to the Company of a legal opinion in a form and substance reasonably satisfactory to counsel to the Placement Agent; (iv) the Company shall have filed with the Securities and Exchange Commission (the “Commission”) (x) a preliminary information statement at least 11 calendar days prior to the date on which the last definitive Information Statement (as defined below) was mailed to be fulfilled or waived of security holders and (y) a definitive information statement (the conditions set forth in Article IV hereof and applicable to the Second Closing shall be fulfilled or waived in accordance herewith, provided such date is not later than 35 days after the First Closing Date; or The date on which the Second Closing occurs is referred to herein as the "SECOND CLOSING DATE." (b“Information Statement”) On the Second Closing Date, if any, CDRD shall deliver to each Investor certificates (with the number of and denomination of such certificates designated by such Investor) representing the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2, such Warrants, purchased by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not later than two business at least 20 calendar days prior to the Second Closing Date; (v) the absence of any material adverse change affecting the Company, its financial condition or its results of operations; (vi) the sale of the Additional Securities shall not be prohibited by any law or governmental order or regulation; (vii) the fulfillment in all material respects of those undertakings of the Company to be fulfilled prior to the Second Closing and (viii) simultaneously with, or prior to, the Second Closing, the Company shall have sold shares of Common Stock and Warrants to third party purchasers, who are not acting in concert with the Purchaser, for an aggregate minimum of $11 million, which shares of Common Stock and Warrants shall be sold to such third party purchasers on the same terms and conditions as are set forth herein.

The Second Closing. In the event that any Minority Holders elect to sell (aor exercise and sell in the case of Company Warrants) The any Minority Shares and Warrants following the Closing Date, Purchaser shall, upon the terms and subject to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders at a second closing of the purchase and sale of the Second Closing Shares (the "SECOND CLOSING"“Second Closing”), which shall take place on the four (4) week anniversary of the Closing Date at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, 1301 Avenue of the Investors' counsel▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and/or at 10:00 am.the offices of Advokatfirman ▇▇▇▇▇ KB, local time on: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ in respect of the Closing Deliverables under Section 7.4 below (i) it being understood that so long as there is at least one Company Warrant outstanding as of the latest of: (A) ten days after written notice from CDRD electing Second Closing, Purchaser shall not be required to sell conduct the Second Closing Shares to Investors ("SECOND CLOSING NOTICE"unless there is at least one Share remaining outstanding), which Second Closing Notice shall be . All documents delivered to the Investors not earlier than the First Closing Date and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable to actions taken at the Second Closing shall be fulfilled deemed to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in accordance herewith, provided writing by the Party against whom such date waiver is not later than 35 days after the First Closing Date; or sought to be enforced. The date on upon which the Second Closing actually occurs is shall be referred to herein as the "SECOND CLOSING DATE“Second Closing Date." (b) On ” Without any further action on the part of the Sellers or Purchaser, automatically upon the Second Closing, Schedule B and Schedule C shall be deemed to be updated to include the names of all Minority Holders who become signatories to this Agreement between the Closing Date and the Second Closing Date in order to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second Closing Date, if any, CDRD each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all representations and warranties set forth in Section 3.31 to Section 3.36 shall deliver to each Investor certificates (with the number be true and correct as of and denomination of such certificates designated by such Investor) representing the Second Closing Shares andDate and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, if Warrants are then issuable the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a result of sales and purchases pursuant to Section 3.2the Second Closing, such Warrants, purchased shall be reflected in a revised Allocation Certificate to be provided to Purchaser by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not Shareholder Representative no later than two business days (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing Datewith respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow Amount.

The Second Closing. In the event that any Minority Holders elect to sell (aor exercise and sell in the case of Company Warrants) The any Minority Shares and Warrants following the Closing Date, Purchaser shall, upon the terms and subject to the conditions of this Agreement, purchase the Shares and Company Warrants of such Minority Holders at a second closing of the purchase and sale of the Second Closing Shares (the "SECOND CLOSING"“Second Closing”), which shall take place on the four (4) week anniversary of the Closing Date at the offices of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Professional Corporation, 1301 Avenue of the Investors' counsel▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and/or at 10:00 am.the offices of Advokatfirman ▇▇▇▇▇ KB, local time on: ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇-▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ in respect of the Closing Deliverables under Section 7.4 below (i) it being understood that so long as there is at least one Company Warrant outstanding as of the latest of: (A) ten days after written notice from CDRD electing Second Closing, Purchaser shall not be required to sell conduct the Second Closing Shares to Investors ("SECOND CLOSING NOTICE"unless there is at least one Share remaining outstanding), which Second Closing Notice shall be . All documents delivered to the Investors not earlier than the First Closing Date and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable to actions taken at the Second Closing shall be fulfilled deemed to have been delivered or taken place simultaneously, and no such delivery or action shall be considered effective or complete unless or until all other such deliveries and actions are completed or waived in accordance herewith, provided writing by the Party against whom such date waiver is not later than 35 days after the First Closing Date; or sought to be enforced. The date on upon which the Second Closing actually occurs is shall be referred to herein as the "SECOND CLOSING DATE“Second Closing Date." (b) On ” Without any further action on the part of the Sellers or Purchaser, automatically upon the Second Closing, Schedule B and Schedule C shall be deemed to be updated to include the names of all Minority Holders who become signatories to this Agreement between the Closing Date and the Second Closing Date in order to sell their Minority Shares or Minority Warrants, as applicable. Upon the Second Closing Date, if any, CDRD each such selling Minority Holder will be deemed to be a “Seller” for all purposes of this Agreement and all representations and warranties set forth in Section 3.31 to Section 3.36 shall deliver to each Investor certificates (with the number be true and correct as of and denomination of such certificates designated by such Investor) representing the Second Closing Shares andDate and all other representations of the Sellers by such selling Minority Holder shall be true and correct as of the Closing Date. Any adjustments required to be made to the Tax Deposit Account, if Warrants are then issuable the Escrow Fund, the Working Capital Escrow Fund or the Shareholder Representative Distribution Account, as a -5- result of sales and purchases pursuant to Section 3.2the Second Closing, such Warrants, purchased shall be reflected in a revised Allocation Certificate to be provided to Purchaser by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not Shareholder Representative no later than two business days (2) Business Days prior to the Second Closing, and the Shareholder Representative shall make all corresponding adjustments to such accounts immediately following the Second Closing. The Shareholder Representative shall be authorized to make such distributions to the Sellers who sold Shares or Company Warrants in the Closing Datewith respect to proceeds otherwise payable to the Minority Holders selling their Minority Shares or Minority Warrants in the Second Closing, to reflect the Sellers’ pro rata portion of the Escrow Amount and Working Capital Escrow Amount.

The Second Closing. (a) The closing (the “Second Closing”) of the purchase and sale of the GE/Macy’s Assets and assumption of the GE/Macy’s Liabilities hereunder (collectively, the “Second Closing Shares (the "SECOND CLOSING"), Purchase and Assumption”) shall take place at the offices of ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, 425 Lexington Avenue, New York, New York, or by facsimile transmission on the Investors' counsel, at 10:00 am., local time on: (i) first Business Day of the latest of: (A) ten days after written notice from CDRD electing to sell the Second Closing Shares to Investors ("SECOND CLOSING NOTICE"), which Second Closing Notice shall be delivered to the Investors not earlier than the First Closing Date and not later than fifteen days Fiscal Month after the First Closing Date; and (B) the date on Fiscal Month in which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable VIII (other than conditions relating solely to the delivery of documents to be dated the Second Closing shall be fulfilled Date) has been satisfied or waived in accordance herewith, provided with the terms of this Agreement or at such other date is not later than 35 days after or location as the First parties hereto jointly designate in writing (the “Second Closing Date; or ”). The date on which parties understand and intend that the Second Closing occurs is referred to herein as Purchase and Assumption shall occur concurrently with the "SECOND CLOSING DATEtermination of the GE/Macy’s Program Agreement." (b) On At the Second Closing, the Purchaser and the Sellers shall deliver or cause to be delivered to each other (i) instruments of sale, assignment, transfer and conveyance of the GE/Macy’s Assets and the GE/Macy’s Liabilities, respectively (which shall be the Second Instrument of Assignment and Assumption), (ii) a receipt for the GE/Macy’s Purchase Price, and (iii) such other instruments as are necessary or appropriate to reflect any alternative arrangements described in Section 6.15, in each case, appropriately executed by the Sellers and the Purchaser. (c) At the Second Closing, the Purchaser shall pay the Estimated GE/Macy’s Purchase Price (plus the amount of any interest thereon as set forth on and calculated in accordance with item 5 of the Estimated Second Closing Statement) by wire transfer of immediately available funds (in U.S. dollars) prior to 11:00 A.M. Eastern time on the Second Closing Date, if any, CDRD shall deliver Date to each Investor certificates an account or accounts specified by FDS at least three (with the number of and denomination of such certificates designated by such Investor3) representing the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2, such Warrants, purchased by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not later than two business days Business Days prior to the Second Closing Date.

The Second Closing. (a) The closing of the purchase and sale of the Second Closing Shares transactions contemplated by this Section 2 (the "SECOND CLOSINGSecond Closing"), ) shall take place at the offices of Hogan & Hartson L.L.P., 8300 Gre▇▇▇▇▇ro ▇▇▇▇▇, Suite 11▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇) ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ the Investors' counseldate (the "FCC Order Finality Date") that the FCC Applications Order shall have been issued and become a Final FCC Order (unless the FCC Order Finality Date shall occur subsequent to March 31, at 10:00 am.2003, local time on: (i) the latest of: (A) ten days after written notice from CDRD electing to sell in which case the Second Closing Shares Investors shall have the option to Investors ("SECOND CLOSING NOTICE"), which Second Closing Notice shall be delivered to the Investors not earlier than the First Closing Date and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable to proceed with the Second Closing until June 30, 2003) or on such other date as shall be fulfilled or waived in accordance herewith, provided such date is not later than 35 days after mutually agreed by Newco LP (by vote of a majority of the First Closing Date; or The date on which disinterested directors of Newco GP) and the Second Closing occurs is referred to herein as Investors (the "SECOND CLOSING DATESecond Closing Date"). At the Second Closing the parties shall execute and deliver (and cause their affiliates to execute and deliver) the agreements and the other certificates, documents and instruments contemplated hereby and shall consummate the transactions contemplated by this Section 2." (b) On At the Second Closing DateClosing, if any, CDRD Newco LP shall deliver to each Investor certificates Investor, to TMI Sub and to Parent Sub an executed copy of the Newco LP Agreement evidencing the limited partnership interests in Newco LP (with the number of and denomination of such certificates designated "Interests") held by such person. In the case of each Second Closing Investor) representing , such delivery shall be made against receipt at the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2, such Warrants, purchased by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit Newco LP from such Second Closing Shares and WarrantsInvestor of its portion of the Investor Purchase Price, if any, into accounts designated by such Investor, and such Investor which shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement be paid by wire transfer in immediately available funds to such an account as CDRD designates designated in writing to the Investors not later than two by Newco LP at least three business days prior to the Second Closing. If any Second Closing DateInvestor shall fail to make the payment contemplated by the preceding sentence (or shall fail to participate in the Second Closing), the other Second Closing Investors in such Second Closing Investor's Investor Group (as shown on Schedule IV) shall be obligated to make up for the resulting shortfall. If any Investor Group shall fail to comply with its obligations hereunder, the other Second Closing Investors shall have the pro rata right (but not the obligation) to make up for the resulting shortfall, in which case the other Second Closing Investor(s) shall be deemed to have consented to the Investor Interests being re-allocated appropriately. (c) At the Second Closing, all of the Convertible Notes that have not theretofore been converted into Interests by the holder thereof shall automatically convert into Interests in Newco LP in accordance with their respective terms and the Newco LP Agreement delivered at the Second Closing pursuant to Section 2.3(b) shall evidence such Interests in Newco LP; provided that at or prior to the Second Closing, Newco LP shall have received at least US$50 million in total funding from the Second Closing Investors (through the combination of Pre-Funded Capital and the Investor Purchase Price paid at the Second Closing). (d) At the Second Closing, Newco LP shall repay in cash all of the then outstanding principal of and accrued interest on the MSI Note and the TMI Note, in accordance with their respective terms; provided that such repayment shall be subject in all cases to the terms of the TMI Note and the MSI Note; and provided further that in respect to such repayment of the MSI Note, there shall not have been an Event of Default under the Convertible Notes pursuant to which the holders thereof have declared the Convertible Notes due and payable; provided further that at or prior to the Second Closing, Newco LP shall have received at least US$50 million in total funding from the Second Closing Investors (through the combination of Pre-Funded Capital and the Investor Purchase Price paid at the Second Closing).

The Second Closing. After the Initial Closing and the Follow-On Closing, the Company shall sell, and the Purchasers shall purchase, Notes in the principal amounts set forth opposite each Purchaser’s name on Exhibit A (afor Initial Purchasers) The or Exhibit B (for Additional Purchasers) under the heading “Principal Amount of Notes to Be Purchased at the Second Closing.” Such purchase and sale shall take place at a closing (the “Second Closing,” and together with the Initial Closing, the Follow-On Closing and the Final Closing (as defined below), the “Closings” and each individually a “Closing”) to be held no sooner than two (2) days and no later than ten (10) days following the approval by (A) the Board of Directors of the Company and (B) the Purchasers holding at least sixty-six and two-thirds percent (66 2/3%) of the principal amount of the outstanding Notes then held by all Purchasers of (i) a business plan and strategy for monetization of the Company’s corn CBP business and (ii) a plan for near- term acquisition opportunities for the Company (the “Second Closing Approval”); provided that if the Second Closing Approval does not occur on or before June 15, 2010, the Purchasers shall be relieved of their obligation to purchase any additional Notes hereunder. Notwithstanding the foregoing, if a Purchaser (an “Opting Out Purchaser”) obligated to purchase a Note at the Second Closing chooses not to purchase such Note at the Second Closing, such Opting Out Purchaser shall be relieved of its obligation to purchase such Note, but such Opting Out Purchaser shall be subject to the Mandatory Conversion described in Section 1.02(e). Each Purchaser shall give the Company notice, at least two (2) days prior to the Second Closing, if such Purchaser shall be an Opting Out Purchaser. The Additional Follow-On Notes and any Notes not purchased at the Second Closing by Opting Out Purchasers (the “Additional Opt Out Notes,” and together with the Additional Follow-On Notes, the “Additional Notes”) may be offered by the Company to Purchasers who have funded or committed to fund their entire pro rata portion of Notes (collectively, the “Participating Purchasers”) on a pro rata basis to the Notes purchased by all Participating Purchasers. If and to the extent that the Participating Purchasers do not agree to purchase all Additional Notes, the Company may, in its sole discretion, apportion and offer the Additional Notes as to which one or more Participating Purchasers has declined the Company’s offer to purchase to one or more of the Participating Purchasers. Upon the acceptance by any Participating Purchaser of the Company’s offer to purchase Additional Notes, the principal amount of Notes set forth opposite such Purchaser’s name under the column “Principal Amount of Notes Purchased at the Second Closing” or “Principal Amount of Additional Notes Purchased at the Final Closing” on Exhibit A or Exhibit B, as the case may be, shall be increased by the Company in an amount equal to the principal amount of the Additional Notes agreed to be purchased by such Participating Purchaser. The purchase and sale of the Second Closing Shares (the "SECOND CLOSING"), Additional Notes shall take place either at the offices of the Investors' counsel, at 10:00 am., local time on: (i) the latest of: (A) ten days after written notice from CDRD electing to sell the Second Closing Shares or at a final closing to Investors be held within ten ("SECOND CLOSING NOTICE"10) business days following the Second Closing (the “Final Closing”), which Second Closing Notice as determined by the Company.” 3. Except as amended hereby, the remainder of the Note Purchase Agreement shall remain in full force and effect. 4. This Amendment shall be governed by, and construed and enforced in accordance with, the substantive laws of the State of Delaware without regard to its principles of conflicts of laws. 5. This Amendment may be executed in any number of counterparts, each of which shall be deemed an original, but all of which taken together shall constitute one and the same instrument, and any of the parties hereto may execute this Agreement by signing any such counterpart. This Amendment may be executed and delivered by facsimile, or by e-mail in portable document format (.pdf) and delivery of the signature page by such method will be deemed to have the same effect as if the original signature had been delivered to the Investors not earlier than other parties. This Amendment shall take effect when executed by the First Closing Date Company and not later than fifteen days after the First Closing Date; and (B) the date on which the last to be fulfilled or waived of the conditions set forth in Article IV hereof and applicable to the Second Closing shall be fulfilled or waived in accordance herewith, provided such date is not later than 35 days after the First Closing Date; or The date on which the Second Closing occurs is referred to herein as the "SECOND CLOSING DATERequisite Purchasers." (b) On the Second Closing Date, if any, CDRD shall deliver to each Investor certificates (with the number of and denomination of such certificates designated by such Investor) representing the Second Closing Shares and, if Warrants are then issuable pursuant to Section 3.2, such Warrants, purchased by such Investor under this Agreement registered in the name of such Investor (or its nominee) or deposit such Second Closing Shares and Warrants, if any, into accounts designated by such Investor, and such Investor shall deliver to CDRD the Purchase Price for the number of Second Closing Shares and Warrants, if any, purchased by such Investor under this Agreement by wire transfer in immediately available funds to such account as CDRD designates in writing to the Investors not later than two business days prior to the Second Closing Date.