Common use of Subsequent Closings Clause in Contracts

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Subsequent Closings. Subject to the satisfaction (terms and conditions of this Agreement, the Corporation may sell, on or waiver before March 15, 2014 to such other persons and entities as are acceptable to the Corporation, up to the total number of Shares that were not issued and sold by the Agent in its sole discretion) Corporation at the Initial Closing, together with Warrants for the purchase of a total number of shares of Common Stock equal to 25% of the number of shares issuable upon conversion of the Shares to be issued pursuant to this Section 4.2 (each sale and issuance of such remaining Shares and associated Warrants at any time after the Initial Closing Date being sometimes referred to herein as a “Subsequent Closing”). Any such sale shall be upon the same terms and conditions as those contained herein. Each such person or entity, by delivery of an executed Investor signature page to this Agreement, shall become a Subsequent Closing set forth party to this Agreement and, as a condition to such sale, such person or entity shall become a party to the Stockholders’ Agreement (as defined in Section 5.2 5.2(b)) by executing and further subject delivering to Section 10.2(a), each applicable Lender hereby promises the Corporation an Instrument of Adherence substantially in the form attached to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with Stockholders’ Agreement. Following the principal amount of Notes acquired execution and delivery by such Lender prior person or entity of an Investor signature page to this Agreement and of such Subsequent Closing (including, without limitation, at Instrument of Adherence to the Closing)Stockholders’ Agreement, such Lender’s Commitment. Subject person or entity shall become a party to this Agreement, shall have the satisfaction rights and obligations of an Investor hereunder, and shall be added to Schedule I hereto (or waiver together with all relevant information regarding the number of Shares, Warrant Shares and aggregate purchase price) without any further action by the Agent) Corporation or the other Investors. Pursuant to Sections 2.3 and 11 of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date Existing Stockholders’ Agreement (as defined below), the Investors party to this Agreement and each Lender severallythe Stockholders’ Agreement who represent the Majority Investors under the Existing Stockholders’ Agreement hereby irrevocably waive, but not jointlyon behalf of all parties to the Existing Stockholders’ Agreement, agrees any pre-emptive rights or rights of first offer they may possess now or hereafter with respect to purchase from the Borrower on such Subsequent Closing Date, a principal amount sales of Notes in the amount each Lender has agreed in writing to pay in respect thereof, Shares and Warrants (and any related issuances of Reserved Common Shares and Warrant Shares) made pursuant to a Notice this Section 4.2. For convenience of Purchase and Sale. The closing (reference, each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 Initial Closing and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Dateare sometimes hereinafter singly referred to as a “Closing” and, (i) each Lender shall pay its pro rata share of together, they are referred to as the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee“Closings”.

Subsequent Closings. Subject to the satisfaction (terms and conditions of this Agreement, the Corporation may sell, on or waiver before May 10, 2013, to such other persons and entities as are acceptable to the Corporation, up to the total number of Shares that were not issued and sold by the Agent in its sole discretion) Corporation at the Initial Closing, together with Warrants for the purchase of a total number of shares of Common Stock equal to 25% of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount number of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) shares issuable upon conversion of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes Shares to be purchased by issued pursuant to this Section 4.2 (each sale and issuance of such Lenders remaining Shares and associated Warrants at such Subsequent Closing, any time after the Borrower shall issue and sell to each Lender on the applicable Subsequent Initial Closing Date (being sometimes referred to herein as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”). Any such sale shall be upon the same terms and conditions as those contained herein. Each such person or entity, by delivery of an executed Investor signature page to this Agreement, shall become a party to this Agreement and, as a condition to such sale, such person or entity shall become a party to the Stockholders’ Agreement (as defined in Section 5.2(c)) by executing and delivering to the Corporation an Instrument of Adherence substantially in the form attached to the Stockholders’ Agreement. Following the execution and delivery by such person or entity of an Investor signature page to this Agreement and of such Instrument of Adherence to the Stockholders’ Agreement, such person or entity shall become a party to this Agreement, shall have the rights and obligations of an Investor hereunder, and shall be added to Schedule I hereto (together with all relevant information regarding the number of Shares, Warrant Shares and aggregate purchase price) without any further action by the Corporation or the other Investors. The Investors party to this Agreement and the Stockholders’ Agreement hereby irrevocably waive any pre-emptive rights or rights of first offer they may possess now or hereafter with respect to sales of Shares and Warrants (and any related issuances of Reserved Common Shares and Warrant Shares) made pursuant to this Section 4.2. For convenience of reference, each of the transactions contemplated by this Section 3.2 Initial Closing and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Dateare sometimes hereinafter singly referred to as a “Closing” and, (i) each Lender shall pay its pro rata share of together, they are referred to as the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee“Closings”.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender At any time prior to such Subsequent Closing (includingApril 1, without limitation2009, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) Board of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price Directors (the “Subsequent Closing Note Purchase PriceBoard”) of the Notes to be purchased by such Lenders at such Company may, in its discretion, request a subsequent closing (each, a “Subsequent Closing,” and, together with the Initial Closing, the Borrower shall issue and sell to each Lender on “Closings”); provided that (i) the applicable amount requested by the Company in any Subsequent Closing Date shall not exceed Two Million Dollars ($2,000,000.00) per Closing; (ii) the Company may not request more than two Subsequent Closings; and (iii) the request for a Subsequent Closing must be approved in writing by the Majority Investors (as defined below). In the event that a Subsequent Closing is triggered in accordance with this Section 2.2, and then, subject to Section 5, each Lender severallyInvestor (or its Affiliates, but not jointlydesignees or successor funds, agrees as the case may be) may, in its sole discretion, purchase a Security in the principal amount equal to the product of (i) the amount requested by the Company in the Subsequent Closing multiplied by (ii) the quotient obtained by dividing (a) such Investor’s Initial Closing Commitment by (b) the aggregate Initial Closing Commitment of all of the Investors (with respect to each Investor, the “Investor Allocation Ratio”) or in such other amounts as the Investors shall agree or in such lesser amount as such Investor, in its sole discretion, may elect. To the extent that any Investor fails to purchase from the Borrower on such Subsequent Closing Date, a its full principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, Securities pursuant to its Investor Allocation Ratio in a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at , then all other Investors purchasing Securities in such Subsequent Closing shall occur have the right (but not the obligation) to purchase such unsold Security amounts pursuant to their respective Investor Allocation Ratios or in such other amounts as the Investors shall agree. All sales at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such a Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, made on the date on which the terms and conditions set forth in Section 5.2 below shall be satisfied or waived this Agreement. In the event that a Subsequent Closing is triggered in accordance with this Agreement (or Section 2.2, the Subsequent Closing shall take place at such later date location and at such time as is mutually agreed to by the Borrower Company and the Agent). On each Subsequent Closing Date, (i) each Lender Majority Investors shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeemutually agree.

Subsequent Closings. Subject to If the satisfaction Business Combination Agreement has previously been terminated for any reason, the Company may sell, on the same terms and conditions as those contained in this Agreement (or waiver by the Agent in its sole discretion) of the other than those terms and conditions to a Subsequent Closing set forth in Section 5.2 and further 2.1(a) (which are applicable only to BOC YAC Funding LLC)), up to an aggregate number of Series B Preferred Units (including the Series B Preferred Units sold at the Initial Closing) equal to 15,448 (subject to Section 10.2(aappropriate adjustment in the event of any unit dividend, unit split, combination or similar recapitalization affecting such Units) under this Agreement (such Units sold after the Initial Closing (if any), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed“Additional Units”), when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at purchasers as the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price Company shall select (the “Subsequent Closing Note Purchase PriceAdditional Purchasers”) of the Notes ); provided that each Additional Purchaser becomes a party to be purchased by such Lenders at such Subsequent Closingthis Agreement, the Borrower shall issue Operating Agreement and sell the RRA by executing and delivering a counterpart signature page to each Lender on such agreement. In the applicable Subsequent Closing Date (as defined below)event any Additional Purchaser purchases at least 3,252 Additional Units, and each Lender severallythen such Additional Purchaser shall have the right, but not jointlyupon written notice to the Company of election, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to Lead Investor Warrants. The subsequent purchases and sales of the Lenders at such Subsequent Closing Additional Units and, if applicable, Lead Investor Warrants, shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx & Xxxxxxxx LLP, 000 Xxxx Xxxxxx 00xx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXX 00000 (and, Xxxxxxxx 00000. With respect to as needed, remotely by electronic transmissions), at such time or at such other place as the Company and such Additional Purchasers acquiring such Additional Units mutually agree upon (which each Subsequent such time and place, together with the Initial Closing, the date and time of such Subsequent Closing (the are designated as a “Subsequent Closing DateClosing”) ). Exhibit A to this Agreement shall be 10:00 a.m.updated to reflect the number of Additional Units and, Chicago timeif applicable, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or Lead Investor Warrants purchased at each such later date as is mutually agreed to by the Borrower Closing and the Agent). On each Subsequent Closing DateAdditional Purchasers acquiring such Additional Units and, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to if applicable, such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeLead Investor Warrants.

Subsequent Closings. Subject In addition to the satisfaction (or waiver by ODI Purchased Shares and the Agent in its sole discretion) of the conditions to Purchased Shares, within a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase period from the Borrower an aggregate principal amount date of additional Notes not this Agreement to exceedthe Longstop Date, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitationCompany may, at the Closing), such Lender’s Commitment. Subject to the satisfaction (one or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing more closings (each a “Subsequent Closing”) , and collectively the “Subsequent Closings”), consummate the issuance and sale of any up to 45,744,502 Series E Preferred Shares and the Unissued Shares (if any), at a price per share equal to US$1.093 per share and on substantially the same terms and conditions as set forth in the Transaction Documents. For the avoidance of doubt, the maximum number of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes Series E Preferred Shares to be issued by the Company pursuant to this Agreement and the Lenders at such ODI Share Purchase Agreement shall be 182,978,009, except as otherwise agreed by the Investors. Each subscriber of Series E Preferred Shares with respect to relevant Subsequent Closing that is not required to obtain the ODI Approval to consummate its Subsequent Closing shall occur at the offices execute and deliver a counterpart signature page to this Agreement to become a party to this Agreement as of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date it executes and time delivers such counterpart signature page and, if it is not an existing shareholder of the Company, a counterpart signature page to the Shareholders Agreement to become a party to the Shareholders Agreement as of the date it executes and delivers such Subsequent Closing counterpart signature page, without further action by any Party, in which case (the “Subsequent Closing Date”A) such subscriber shall be 10:00 a.m.deemed as and have all the rights and obligations of an “Investor” and a party under this Agreement as if it had executed this Agreement, Chicago timeand all schedules and exhibits hereto shall, on where applicable, be updated to reflect such subscriber as a party hereto without the date on which need to amend this Agreement, (B) the conditions Warranties of the Warrantors set forth in Section 5.2 below 3 hereof shall be satisfied or waived in accordance with this Agreement (or such later date speak as is mutually agreed to by of the Borrower Closing and the Agent). On Warrantors shall have no obligation to update any such Warranties, and (C) the representations and warranties of any Investor set forth in Section 4 at each Subsequent Closing Date, (i) each Lender shall pay its pro rata share speak as of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Subsequent Closings. Subject Notwithstanding any provision in this Purchase Agreement to the satisfaction (or waiver by contrary, in the Agent in its sole discretion) of event that all the conditions to a Subsequent Closing set forth in Sections 8.2 and 8.3 have been satisfied, and all the conditions set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated 8.1 have been satisfied with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject respect to the satisfaction (or waiver by the Agent) portion of the Business conducted by Seller and the Seller Subsidiaries in the United States of America, the Commonwealth of Australia, the Netherlands, Singapore and the Republic of Ireland, but the conditions to a Subsequent Closing set forth in Section 5.2 and further subject 8.1 have not been satisfied with respect to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share the portion of the aggregate purchase price (Business conducted by Seller and the “Subsequent Seller Subsidiaries in one or more other jurisdictions, Seller and Parent and Buyer agree to consummate the Closing Note Purchase Price”) with respect to all assets and Liabilities of the Notes to be purchased by Business in such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With jurisdictions with respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below 8.1 have been satisfied (the "Primary Closing"). In connection with the Primary Closing the parties shall enter into the Intellectual Property Agreements covering the Business Intellectual Property on a worldwide basis, even if the other assets and Liabilities in certain countries are to be conveyed and assumed in a Subsequent Closing. In the event of the Primary Closing, Seller shall sell, transfer, assign, convey and deliver to Buyer, and Buyer shall purchase, acquire and accept from Seller, those Purchased Assets and Assumed Liabilities constituting the portion of the Business conducted in such jurisdictions with respect to which the conditions set forth in Section 8.1 have been satisfied, and Buyer shall pay the Purchase Price minus the net book value of the Purchased Assets (as reflected in the books and records of Seller or the applicable Seller Subsidiary at such time) that were not so transferred, other than the Avaya Tianjin shares, which shall be equal to the value on Schedule 8.5. Such reduction, if any, shall first reduce the amount of the Convertible Note, dollar for dollar, and to the extent the amount of the Convertible Note is reduced to zero, any remaining shortfall shall reduce the Cash Payment, dollar for dollar. The closing or closings with respect to the Purchased Assets and Assumed Liabilities not sold, transferred, assigned, conveyed and delivered, and purchased, acquired and accepted, at the Primary Closing (each, a "Subsequent Closing") shall occur from time to time as promptly as practical after the conditions set forth in Section 8.1 have been satisfied or waived with respect to the portion of the Business conducted in accordance with this Agreement (or such later date as is mutually agreed any particular jurisdiction. At each Subsequent Closing, Buyer shall pay to by the Borrower Seller and the AgentSeller Subsidiaries, as applicable, the net book value of the Purchased Assets (as reflected in the books and records of Seller or the applicable Seller Subsidiary at such time). On each , other than the Avaya Tianjin shares, which shall be equal to the value on Schedule 8.5, being transferred at such Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender assume all related Assumed Liabilities at such Subsequent Closing. In no event shall the conditions set forth in Sections 8.2(a) and 8.3(a) be deemed to apply to any Subsequent Closing, and, except as provided in Section 8.5 below, in no event shall the aggregate consideration paid by wire transfer Buyer to Seller and its Subsidiaries, as applicable, at the Primary Closing and all Subsequent Closings be less than or more than the Purchase Price. The sale, assignment, transfer, conveyance and delivery, and the purchase, acquisition and acceptance, of immediately available funds the Purchased Assets and the Assumed Liabilities at each Subsequent Closing shall be effected pursuant to short-form bills of sale and assumption agreements, in each case in such form as Seller and Buyer mutually agree satisfies the requirements of applicable local Law. From and after the Primary Closing, the entirety of the Business (including that portion operated by Seller and the Seller Subsidiaries) shall be operated for the benefit and detriment of Buyer in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSection 2.6.

Subsequent Closings. Subject to the satisfaction terms and conditions of this Agreement, the Company may sell, on or before December 5, 2007, any unsold Shares (or waiver by the Agent in its sole discretion) of the conditions up to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an maximum aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing six million four hundred thirty-four thousand three hundred thirty-eight (including, without limitation, 6,434,338) Shares at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date all Closings (as defined below), at the same price per share as the Shares sold at the Initial Closing to such other persons and each Lender severally, but not jointly, agrees to purchase from entities as are determined by the Borrower on such Subsequent Closing Date, a principal amount Company and the Board of Notes in Directors of the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing Company (each a such new investor, an “Subsequent ClosingAdditional Purchaser”) ), following the fulfillment or waiver of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below 5 hereof or at such other time and place as the Company and the Additional Purchaser(s) mutually agree upon, orally or in writing (each of which time and place is designated as a “Subsequent Closing,” and with the Initial Closing, each a “Closing”). Any Additional Purchaser shall be satisfied or waived in accordance with considered a “Purchaser” for purposes of this Agreement, and any Series E Preferred Stock so acquired by such Additional Purchaser shall be considered “Shares” for the purposes of this Agreement (or and all other agreements contemplated hereby upon execution by such later date as is mutually agreed to by Additional Purchaser of an appropriate counterpart signature page. Upon each such event, the Borrower Company shall prepare and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price distribute to the Borrower for Purchasers (including the Notes to be issued and sold to such Lender at such Subsequent ClosingAdditional Purchasers) a revised Exhibit A, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower which shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in include the name of each Additional Purchaser and the number of shares of Series E Preferred Stock to be purchased by each Additional Purchaser. Upon the Subsequent Closing of the sale of shares of Series E Preferred Stock to any Additional Purchaser, such Lender Additional Purchaser shall also, as evidenced by an applicable executed counterpart signature page, become a party to the Related Agreements (as defined below) and shall have the rights and obligations hereunder and thereunder. Each Subsequent Closing shall take place at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx, Menlo Park, California. The Purchasers hereby irrevocably waive any pre-emptive rights or its designeerights of first offer, and related notice rights, they may possess now or hereafter with respect to sales of Series E Preferred Stock made pursuant to this Section 2.2.

Subsequent Closings. Subject Upon the purchase of any Additional Notes and Additional Warrants subject to the satisfaction (or waiver by the Agent in its sole discretion) of the closing conditions to a Subsequent Closing set forth in Section 5.2 Sections 5.1, 5.3 and further subject to Section 10.2(a)5.4, each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, Closings shall take place at the Closing)offices of Xxxxxx Xxxx Xxxxx Raysman & Xxxxxxx LLP, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on such Lender’s Commitment. Subject to date and at such time as the satisfaction (or waiver by Borrowers and the Agent) , acting on behalf of the conditions to Purchasers, mutually agree upon in writing (each, a “Subsequent Closing set forth in Section 5.2 Closing” and further subject to Section 10.2(a)collectively, in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closings”). The date of each applicable Subsequent Closing Note Purchase Price”) of the Notes is referred to be purchased by such Lenders at such herein as a “Subsequent Closing Date.” At each Subsequent Closing, the Borrower Borrowers shall issue and sell deliver to each Lender on the applicable Subsequent Closing Date Additional Purchaser (i) an Additional Note, dated as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on of such Subsequent Closing Date, a in an original principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued equal to the Lenders at dollar amount set forth opposite such Subsequent Closing shall occur at Additional Purchaser’s name under the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPheading “Additional Note Purchase Price” on Schedule II hereto, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) which shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to updated by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share acting on behalf of the applicable Subsequent Closing Note Purchase Price Purchasers, from time to the Borrower for the Notes to be issued and sold to such Lender at such time as necessary upon each Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, respect to such Additional Purchaser and (ii) Additional Warrants for the Borrower shall deliver to each Lender number of shares of Common Stock set forth opposite such Additional Purchaser’s name under the Notes (heading “Number of Additional Closing Warrant Shares” in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSchedule II hereto.

Subsequent Closings. Subject to A Subsequent Closing shall occur as soon as practicable, and in any event within 5 business days of the satisfaction (or waiver delivery by the Agent in its sole discretion) Company to Purdue of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to written notice calling for such Subsequent Closing (including, without limitation, at and specifying the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) amount of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes Common Shares to be purchased by such Lenders issued at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent ClosingClosing Notice”) ), which in each case shall be an even number of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000Common Shares. With respect to At each Subsequent Closing, the date and time Company will deliver to Purdue via e-mail an electronic copy of such Subsequent Closing (the “Subsequent Closing Date”signed stock certificate(s) shall be 10:00 a.m., Chicago time, on representing the date on which the conditions set forth number of Common Shares specified in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price Notice, registered in Purdue’s name, and an electronic copy of a signed Warrant exercisable for a number of Warrant Shares equal to 35% of the Borrower for number of the Notes to be Common Shares issued and sold to such Lender at in each such Subsequent Closing, by which number of Warrant Shares shall be rounded up to the next even number. The Company will use its best efforts to achieve the authorization, and take all requisite action on the part of the Company, its officers, directors and stockholders necessary for said authorization, of sufficient shares of Common Stock to issue to Purdue all Common Shares and Warrants issuable pursuant to this Agreement as soon as practicable after the Initial Closing. Each of the Company and Purdue shall use its best efforts to complete the Final Subsequent Closing on or prior to Exclusive Negotiation Period. Following delivery of each Subsequent Closing Notice, Purdue shall promptly initiate a wire transfer of immediately available funds in accordance with (U.S. dollars) equal to the Borrower’s written wire instructionsstated value of such Common Shares to be delivered to the account of the Company, account details of which are as set forth on Schedule 4.2 affixed hereto. Notwithstanding the foregoing (i) at each Subsequent Closing, the Company shall issue and sell not less than $1,000,000 other than the final Subsequent Closing which can be for less than $1,000,000; (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf aggregate purchase price of the Borrower Common Shares and registered Warrants sold in all Closings shall not exceed the name Investment Amount; and (iii) no Subsequent Closing shall take place after the end of such Lender or its designeethe Exclusive Negotiation Period without the prior written consent of Purdue.

Subsequent Closings. Subject to the satisfaction terms and conditions of this Agreement, the Company may sell any unsold Shares (or waiver by the Agent in its sole discretion) of the conditions up to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an maximum aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing six million (including, without limitation, 6,000,000) at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date all Closings (as defined below), at the same price per share as the Shares) sold at the Initial Closing to such other persons and each Lender severally, but not jointly, agrees to purchase from entities as are determined by the Borrower on such Subsequent Closing Date, a principal amount Company and the Board of Notes in Directors of the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing Company (each a such new investor, an “Subsequent ClosingAdditional Purchaser”) ), following the fulfillment or waiver of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below 5 hereof or at such other time and place as the Company and the Additional Purchaser(s) mutually agree upon, orally or in writing (each of which time and place is designated as a “Subsequent Closing,” and with the Initial Closing, each a “Closing”). Any Additional Purchaser shall be satisfied or waived in accordance with considered a “Purchaser” for purposes of this Agreement, and any Series F Preferred Stock so acquired by such Additional Purchaser shall be considered “Shares” for the purposes of this Agreement (or and all other agreements contemplated hereby upon execution by such later date as is mutually agreed to by Additional Purchaser of an appropriate counterpart signature page. Upon each such event, the Borrower Company shall prepare and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price distribute to the Borrower for Purchasers (including the Notes to be issued and sold to such Lender at such Subsequent ClosingAdditional Purchasers) a revised Exhibit A, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower which shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in include the name of each Additional Purchaser and the number of shares of Series F Preferred Stock to be purchased by each Additional Purchaser. Upon the Subsequent Closing of the sale of shares of Series F Preferred Stock to any Additional Purchaser, such Lender Additional Purchaser shall also, as evidenced by an applicable executed counterpart signature page, become a party to the Related Agreements (as defined below) and shall have the rights and obligations hereunder and thereunder. Each Subsequent Closing shall take place at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx, Menlo Park, California. The Purchasers hereby irrevocably waive any pre-emptive rights or its designeerights of first offer, and related notice rights, they may possess now or hereafter with respect to sales of Series F Preferred Stock made pursuant to this Section 2.2.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 below, the purchase and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount sale of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Units at Subsequent Closing (including, without limitation, Closings shall take place at the Closing)offices of 14 Cadwalader, such Lender’s Commitment. Subject to Wickxxxxxx & Xaft, 000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, xx 10:00 a.m. on the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth date specified in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (Notice, or at such other time and place as defined below), the Company and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any Investors purchasing 662/3% of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes Purchased Securities to be issued to the Lenders purchased at such Subsequent Closing mutually agree upon orally or in writing (which time and place are designated as a "Subsequent Closing"). The Company shall occur give each Investor at least twenty (20) days prior written notice (the offices "Subsequent Closing Notice") of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, which notice shall specify the date and time of such Subsequent Closing (Closing, the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share aggregate number of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes Units to be issued purchased and sold to such Lender at such Subsequent Closing, by wire transfer the amount of immediately available funds in accordance the LIBOR Accrual per Unit, instructions for the payment of the purchase price and, if applicable, each Investor's Ratable Share to be purchased at such Subsequent Closing. In the event an Investor or Investors elect to request a Subsequent Closing, such Investor(s) shall deliver a written notice to the Company requesting such Subsequent Closing (an "Investor Notice"). The Company shall, promptly after receipt of an Investor Notice, deliver a Subsequent Closing Notice to each of the Investors. Such Subsequent Closing Notice shall provide each Investor with at least twenty (20) days prior written notice of the Borrower’s written wire instructionsproposed Subsequent Closing, and shall provide each Investor a period of not less than ten (ii10) days in which to notify the Borrower Company of the number of Units, if any, such Investor has elected to purchase at the Subsequent Closing. No Investor shall be obligated to purchase any Units at a Subsequent Closing requested by another Investor(s) and no Investor's rights or obligations under this Agreement shall be affected by the failure of an Investor to participate in such a Subsequent Closing. At each Subsequent Closing, the Company shall deliver to each Lender Investor participating in such Subsequent Closing a certificate and instruments representing the Notes (Purchased Securities to be purchased by such Investor, against delivery to the Company by such Investor of a wire transfer in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf amount of the Borrower aggregate purchase price therefor. Such certificates and registered instruments shall be issued in the name of such Lender or its designeenames and the proportions set forth on Schedule A hereto.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) Each consummation of the conditions transactions referred to in Sections 1.1(ii) and 1.2(ii) shall constitute a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The subsequent closing (each a “Subsequent Closing”). The Company shall provide the Purchaser with two business days prior written notice (each, a “Written Notice”) of any its intent to consummate a Subsequent Closing (such Written Notice shall include the number of shares of Preferred Stock and Warrants that the transactions contemplated by this Section 3.2 Company will issue to the Purchaser, and the issuance of the additional Notes purchase price to be issued delivered by the Purchaser (which, with respect to the Lenders Warrants and purchase price, shall be calculated pursuant to the terms and conditions of this Agreement) at such Subsequent Closing), provided that such Written Notice shall be provided to the Purchaser five business days in advance of a Subsequent Closing if the Company is requesting that the Purchaser purchase more than 50,000 shares of Preferred Stock at such Subsequent Closing. Each Subsequent Closing shall occur at take place (subject to the offices terms and conditions hereof) as of Xxxxxx Xxxxxx Xxxxxxxx LLPthe date that is five business days after the date that a Written Notice is delivered to the Purchaser and each such date is referred to herein as a “Subsequent Closing Date.” Each Subsequent Closing shall take place via telecopier, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000electronic or overnight mail as the Purchaser and the Company may agree. With respect to At each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender the Company shall pay its pro rata share deliver to the Purchaser certificates evidencing the number shares of Preferred Stock and Warrants specified in the relevant Written Notice, with such certificates and Warrants registered in the name of the applicable Subsequent Closing Note Purchase Price to Purchaser and legended as provided herein and the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds other documents specified in accordance with the Borrower’s written wire instructionsArticle IV, and (ii) the Borrower Purchaser shall deliver to each Lender the Notes (Company the purchase price specified in the denominations as such Lender relevant Written Notice, which shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf represent payment in full of the Borrower purchase price for such Preferred Stock and registered in the name of such Lender or its designeeWarrant Shares.

Subsequent Closings. Subject From the date hereof until the 24-month anniversary of the First Closing, from time to time at the satisfaction (or waiver by the Agent election of each Purchaser in its sole discretion, such Purchaser shall have the right to purchase (“Purchaser Option”) its pro-rata share of an additional $25 million of Debentures (based on the original Subscription Amount as to the First Closing hereunder) (such Purchaser’s pro-rata share, the “Purchaser Option Amount”), all or in part, on the same terms and conditions as the Debentures issued at the First Closing, mutatis mutandis. To exercise its right to a Purchaser Option, a Purchaser shall notify the Company, in writing, of its election to exercise the Purchaser Option (“Optional Notice Date”), which notice shall indicate the portion of such Purchaser’s Purchaser Option Amount it wishes to purchase (“Subsequent Closing Subscription Amount”). Withing 5 Trading Days of the Optional Notice Date, upon the terms and subject to the conditions set forth herein, the Company agrees to a sell, and the such Purchaser, severally and not jointly with the other Purchasers, agrees to purchase, Debentures for the Subsequent Closing Subscription Amount. Each Purchaser shall deliver to the Company, via wire transfer or a certified check, immediately available funds equal to such Purchaser’s applicable Subsequent Closing Subscription Amount as set forth in the Purchaser Option notice, and the Company shall deliver to each Purchaser its respective Debenture, as determined pursuant to Section 2.3(a), and the Company and each Purchaser shall deliver the other items set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, 2.3 deliverable at the Subsequent Closing), such Lender’s Commitment. Subject to the Upon satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 covenants and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by Sections 2.3 and 2.4, the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share take place remotely by electronic transfer of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeedocumentation.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) receipt of the conditions to a Subsequent Closing stockholder approval set forth in Section 5.2 4(f) for sales of Common Shares and further subject to Section 10.2(a)Warrant Shares underlying Warrants, each applicable Lender hereby promises to purchase from in the Borrower an aggregate principal amount aggregate, in excess of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing fifteen percent (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent15%) of the conditions to a Subsequent Closing Company’s ordinary securities on issue as calculated in the formula set forth in Section 5.2 and further subject SCHEDULE 4(F) as of the date of the Initial Closing, at any time after the Initial Closing, to Section 10.2(athe extent that (i) the Purchasers already a party to this Agreement (at the time determined, the “Existing Purchasers”), in consideration for and/or (ii) additional Purchasers reasonably acceptable to the Company (each applicable Lender’s payment an “Additional Purchaser”), agree by execution of its pro rata share a counterpart of the aggregate purchase price (the this Agreement entitled “Subsequent Closing Note Purchase PriceSignature Page” (each, a “Subsequent Closing Signature Page”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from A$50,000 or any greater amount in value (unless such minimum amount is waived by the Borrower Company) of Common Shares and Warrants, which amount shall be set forth on such Subsequent Closing DateSignature Page, a principal amount the Company shall, within three (3) days thereafter, hold an additional Closing with respect to the purchase of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase such Common Shares and Sale. The closing Warrants (each a “Subsequent Closing”, and with the Initial Closing, the “Closings” and each a “Closing”); provided, however, that the aggregate purchase price of the Common Shares and Warrants issued at all Closings may not exceed Fifteen Million Australian Dollars (A$15,000,000) and provided further, however, that all Subsequent Closings shall occur on or before August 31, 2011, and only for so long as all of any the conditions precedent to such Subsequent Closing set forth in Section 6 and Section 7 have been satisfied or waived. The terms of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders consummated at such each Subsequent Closing shall occur be identical to the terms consummated at the offices Initial Closing, excepting the date of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000the Common Shares and Warrants issued. With respect to each In connection with a Subsequent Closing, the date and time Company shall amend the Schedule of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed Purchasers to reflect any additional purchase by the Borrower Existing Purchasers and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeadd any Additional Purchasers.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, Closings shall take place at the Closing)offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 date and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closingtime as the Company shall determine (each, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing” and, collectively, the “Subsequent Closings” and, together with the Initial Closing, individually, a “Closing” and, collectively, the “Closings”) ). The date of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such each applicable Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect is referred to herein as a “Subsequent Closing Date.” At each Subsequent Closing, the date and time Company shall deliver to each Additional Purchaser (a) an Additional Note, dated as of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each applicable Subsequent Closing Date, in an aggregate original principal amount equal to the dollar amount set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing Principal Amount” on Schedule B hereto, (b) an Additional Warrant to purchase shares of Common Stock of the Company as set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing Warrant Shares” on Schedule B attached hereto and (c) this Agreement, executed by the Company and the Additional Purchasers. The Company shall update Schedule B from time to time as necessary upon each Subsequent Closing. At each Subsequent Closing, each Additional Purchaser shall deliver to the Company the amount set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing Principal Amount” on Schedule B hereto, by any combination of (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closingbank check, by (ii) personal check or (iii) wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of account as the Borrower and registered in the name of such Lender or its designeeCompany designates.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) The date and time of the conditions to a Subsequent Closings (as defined below) (the "Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a)Dates") shall be 10:00 a.m., each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceedEastern time, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date date specified in the Additional Share Notice (as defined below) or the Company Call Notice (as defined below), and each Lender severally, but not jointly, agrees to purchase from as the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to case may be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower Company and the Agentapplicable Purchaser or Purchasers). On each At any time after the Initial Closing Date, at such Purchaser's option (each, a "Purchaser Call Option"), by delivering written notice to the Company (an "Additional Securities Notice") at least five (5) Business Days (the "Additional Securities Notice Date") prior to the Subsequent Closing Date set forth in the Additional Securities Notice, the Purchasers may, severally and not jointly, purchase from the Company, and the Company shall sell and issue at multiple closings, if applicable, to the Purchasers, such Purchaser's portion (based on the amounts set forth next to such Purchaser's name on Schedule 2 attached hereto) of (A) an additional $1,312,000 aggregate principal amount of Debentures or, if the Shareholder Approval shall have been obtained, 1,312 shares of Preferred Stock (the "Additional Convertible Securities"), (B) 304,000 shares of Common Stock (the "Additional Shares") and (C) Warrants to purchase an additional 1,440,000 shares of Common Stock (the "Additional Warrants" and together with the Additional Convertible Securities and the Additional Shares, the "Additional Securities") for an aggregate purchase price of $1,920,000. Each Purchaser shall only be entitled to deliver one Additional Securities Notice. The Additional Securities Notice shall set forth (i) such Purchaser's portion of the Additional Securities as set forth on Schedule 2 attached hereto, (ii) such Purchaser's portion of the Additional Purchase Price (as defined below) as set forth on Schedule 2 attached hereto and (iii) the date for the Subsequent Closing Date. The closings of the purchase and sale of the Additional Securities are hereinafter referred to each as the "Subsequent Closing," and the purchase price paid for the Additional Securities is hereinafter referred to as the "Additional Purchase Price." The Initial Closing and the Subsequent Closing are each referred to herein as a "Closing." If any Purchaser has not exercised its Purchaser Call Option on the third day after the date on which the Registration Statement (as defined in the Registration Rights Agreement) is declared effective by the Securities and Exchange Commission (the "Commission") (or if such third day is not a business day, the next succeeding business day), the Company shall have the option, by delivering written notice to such Purchaser (a "Company Call Notice") at least five (5) Business Days (the "Company Call Notice Date") prior to the Subsequent Closing Date set forth in the Company Call Notice, to sell and issue to such Purchaser, and such Purchaser shall, severally and not jointly, purchase from the Company such Purchaser's portion (based on the amounts set forth next to such Purchaser's name on Schedule 2 attached hereto) of the Additional Securities. The Company Call Notice shall set forth (i) each Lender shall pay its pro rata share such Purchaser's portion of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent ClosingAdditional Securities as set forth on Schedule 2 attached hereto, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf Purchaser's portion of the Borrower Additional Purchase Price as set forth on Schedule 2 attached hereto and registered in (iii) the name of such Lender or its designeedate for the Subsequent Closing Date.

Subsequent Closings. Subject to the satisfaction terms and ------------------- conditions herein (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to including the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below Article VII), upon either (a) the Company's written notice specifying (i) the ----------- proposed Subsequent Closing Date (which shall not be satisfied less than 20 nor more than 60 Business Days after delivery of such notice), (ii) the amount of Additional Purchased Securities to be purchased and (iii) such other information as may be requested by the Purchaser or waived (b) a payment by the Purchaser with respect to the Guaranty, or a payment by either the Fund or Dutch with respect to the Fund Guaranty, in accordance with this Agreement each case whether as a result of a call by CIBC or a voluntary investment which has the effect of reducing the amount outstanding under the Guaranty, which the Purchaser and the Funds may elect to make such payment by the purchase of a number of Additional Purchased Securities equal to the quotient obtained by dividing the amount of such payment by the Per Share Price for an aggregate purchase price equal to the amount of such payment then the closing of each such purchase and sale of the Additional Purchased Securities (each, a "Subsequent Closing") shall take place on such proposed Subsequent ------------------ Closing Date, or such later other date as is mutually agreed to by the Borrower and parties hereto (the Agent"Subsequent Closing Date"), at the offices of Xxxxxxxx & Xxxxx at 000 Xxxx ----------------------- Xxxxxxxx Xxxxxx, Chicago, Illinois or at 000 Xxxx 00xx Xxxxxx, Xxx Xxxx, Xxx Xxxx, or such other place as shall be mutually agreed to by the parties hereto. On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price Company will deliver to the Borrower for Purchaser a certificate representing the Notes to be issued and sold to such Lender number of shares of Series A Convertible Preferred purchased at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to Closing purchased at such Subsequent Closing) Closing which together represent the Additional Purchased Securities purchased by the Purchaser at such Lender is then purchasing, duly executed on behalf of the Borrower and Subsequent Closing to be registered in the name of such Lender or its designeethe Purchaser against delivery by the Purchaser of the purchase price therefor by payment of cash to the Company in accordance with Section 3.2. ------------ -------------------------- /1/ As of the date hereof, the Guaranty Amount is equal to $6,000,000 and the Purchaser may purchase up to an additional amount of 266.667 ($10 million less $6 million divided by $15) shares of Series A Convertible Preferred.

Subsequent Closings. Subject to If the satisfaction Maximum Offering Amount is not sold at the Initial Closing, at any time prior the earliest of (or waiver i) the date upon which subscriptions for the Maximum Offering Amount as may be increased in connection with the Over-Subscription Option) have been accepted, (ii) August 31, 2019 unless extended by the Company and the Placement Agent in its sole discretionto September 30, 2019, and (iii) the date upon which the Company and the Placement Agent elect to terminate the Offering (the earliest of such dates, the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a“Termination Date”), each applicable Lender hereby promises the Placement Agent and the Company may continue to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below)accept, and each Lender severally, but not jointly, agrees continue to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing have closings (each a “Subsequent Closing” and collectively the “Subsequent Closings”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued ), up to the Lenders at Maximum Offering Amount, and if there are over-subscriptions, such Subsequent Closing shall occur at additional Shares as may be sold in connection with the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing Over-Subscription Option (the “Subsequent Closing DateShares”) to such persons as may be approved by the Company and who are reasonably acceptable to the Placement Agent (the “Additional Purchasers”). All such sales made at any Subsequent Closing, shall be 10:00 a.m., Chicago time, made on the date on which the terms and conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower Subscription Agreements, and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share the representations and warranties of the applicable Subsequent Company set forth in Section 3 hereof (and the Disclosure Schedule) shall speak as of each Closing Note Purchase Price (except to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds extent specified otherwise in accordance with the Borrower’s written wire instructions, Section 3) and (ii) the Borrower representations and warranties of the Additional Purchasers in Section 4 hereof shall deliver to each Lender the Notes (in the denominations speak as such Lender shall have requested prior to of such Subsequent Closing. Any Subsequent Closing Shares issued and sold pursuant to this Section 1.2(b) which such Lender is then purchasingshall be deemed to be “Shares” for all purposes under this Agreement, duly executed on behalf of and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. The Initial Closing and the Borrower and registered in Subsequent Closings, if any, shall be known collectively herein as the name of such Lender “Closings” or its designeeindividually as a “Closing.”

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 The Company may issue and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of sell additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price Securities (the “Subsequent Closing Note Purchase PriceSecurities”) of the Notes in one or more closings on or prior to be purchased by such Lenders at such Subsequent ClosingSeptember 15, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing 2011 (each a “Subsequent Closing” and, together with the Initial Closing, a “Closing”) of any of to certain investors that are existing investors in the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing Company’s capital stock (the “Subsequent Investors”) until the aggregate principal amount of Notes issued and sold is equal to the Maximum Principal Amount (including any additional Notes that any Investors have the right to purchase pursuant to this clause (c) or any Addendum. Each Subsequent Closing shall take place on such dates (each, a “Subsequent Closing Date” and, together with the Initial Closing Date, a “Closing Date”) and at such times and places as the Company and the Subsequent Investor(s) shall mutually agree. Each Subsequent Investor under this Section 2.1(c), by executing an addendum to this Agreement, in the form attached hereto as the Addendum (an “Addendum”), shall be 10:00 a.m.deemed to be an Investor as of the date hereof for all purposes under this Agreement and shall be subject to the terms and conditions hereof, Chicago timeand any Notes and Warrants purchased and sold in a Subsequent Closing shall be deemed to be “Notes” and “Warrants,” respectively, under this Agreement, and any such Investor shall, by executing an Addendum, become a party to the Registration Rights Agreement and shall have the rights and obligations of an Investor hereunder and thereunder. Each Investor shall have the right, but not the obligation, to purchase anytime prior to September 15, 2011 (on one or more occasions), additional Notes (and a corresponding number of Warrants) in a principal amount up to the aggregate limit set forth under the caption “Option for Additional Purchase of Notes and Warrants” on the date Schedule of Investors hereto or on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent)applicable Addendum. On each Subsequent Closing Date, (i) each Lender shall pay If any Investor does not purchase its pro rata portion (a “Declining Investor”), the other Investor has the right to purchase on September 16, 2011 on a pro rata basis such Declining Investor’s share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Remaining Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf and a corresponding number of the Borrower and registered in the name of such Lender or its designeeWarrants).

Subsequent Closings. Subject to the satisfaction (The subsequent closing or waiver by the Agent in its sole discretion) closings of the conditions to transactions contemplated herein in connection with a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price Tranche (the “Subsequent Closing Note Purchase PriceClosing(s)”) shall take place on or prior to March 31, 2010, upon the affirmative election by an Investor, for itself and without requiring or limiting the participation by another Investor, in such aggregate principal amount(s) of such Subsequent Tranche(s) and on such day(s) as are determined by the Notes affirmative election of such Investor(s) at the offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, counsel for the Issuer, 0000 X Xxxxxx, XX, Xxxxxxxxxx, XX 00000 or such other location as determined by the Issuer. At the Subsequent Closing(s) (i) each Investor electing to be purchased participate in such Subsequent Closing shall remit payment in accordance with Section 1.3(b) and in the manner specified in Section 1.3(c); (ii) the Issuer shall issue to each such Investor a Note representing the amount paid by such Lenders the Investor to the Issuer at such Subsequent Closing, ; (iii) the Borrower Issuer shall issue and sell to each Lender on such Investor a Warrant or Warrants, each exercisable for five (5) years from the date of Closing at the applicable Subsequent Closing Date (as defined below)Warrant Price, and each Lender severally, but not jointly, agrees to purchase from a number of shares of Common Stock equal to the Borrower on such Subsequent Closing Date, a principal amount of Notes in Conversion Shares into which the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated paid by this Section 3.2 and the issuance of the additional Notes to be issued such Investor to the Lenders Issuer at such Subsequent Closing would be repaid; and (iv) all other actions referred to in this Agreement which are required to be taken for the Subsequent Closing(s) shall occur be taken and all other agreements and other documents referred to in this Agreement which are required for the Subsequent Closing(s) shall be executed and delivered. Notwithstanding the foregoing, if no Future Private Placement is consummated prior to the Due Date, each Warrant issued to an Investor pursuant to Section 2.1(b)(iii) above will be immediately exercisable for a number of shares of Common Stock of the Issuer equal to the amount paid by such Investor to the Issuer at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to divided by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee$0.03.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Restatement Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Subsequent Closings. Subject to the satisfaction terms and conditions of this Agreement, the Company may sell, on or before October 22, 2006, any unsold Shares (or waiver by the Agent in its sole discretion) of the conditions up to a Subsequent Closing set forth in Section 5.2 maximum aggregate of ten million one hundred thousand seven hundred and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing fifty six (including, without limitation, 10,100,756) shares at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date all Closings (as defined below), at the same price per share as the Shares sold at the Initial Closing to such other persons and each Lender severallyentities as are determined by the Company and the Board of Directors of the Company, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed and approved in writing to pay in respect thereof, pursuant to a Notice by holders of Purchase and Sale. The closing sixty percent (60%) of the Common Stock issuable or issued upon the conversion of the Shares (each a approved new investor, an “Subsequent ClosingAdditional Purchaser”) ), following the fulfillment or waiver of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below 5 hereof or at such other time and place as the Company and the Additional Purchaser(s) mutually agree upon, orally or in writing (each of which time and place is designated as a “Subsequent Closing,” and with the Initial Closing, each a “Closing”). Any Additional Purchaser shall be satisfied or waived in accordance with considered a “Purchaser” for purposes of this Agreement, and any Series D Preferred Stock so acquired by such Additional Purchaser shall be considered “Shares” for the purposes of this Agreement (or and all other agreements contemplated hereby upon execution by such later date as is mutually agreed to by Additional Purchaser of an appropriate counterpart signature page. Upon each such event, the Borrower Company shall prepare and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price distribute to the Borrower for Purchasers (including the Notes to be issued and sold to such Lender at such Subsequent ClosingAdditional Purchasers) a revised Exhibit A, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower which shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in include the name of each Additional Purchaser and the number of shares of Series D Preferred Stock to be purchased by each Additional Purchaser. Upon the Subsequent Closing of the sale of shares of Series D Preferred Stock to any Additional Purchaser, such Lender Additional Purchaser shall also, as evidenced by an applicable executed counterpart signature page, become a party to the Related Agreements and shall have the rights and obligations hereunder and thereunder. Each Subsequent Closing shall take place at the offices of Xxxxxx & Xxxxxxx LLP, 000 Xxxxx Xxxxx, Menlo Park, California. The Purchasers hereby irrevocably waive any pre-emptive rights or its designeerights of first offer, and related notice rights, they may possess now or hereafter with respect to sales of Series D Preferred Stock made pursuant to this Section 2.2.

Subsequent Closings. Subject If additional closings occur pursuant to the satisfaction Underwriting Agreement or the Exchangeable Issuer Purchase Agreement, at the Executive Share Purchase Closing or in a Subsequent Share Sale, and when the Company is required to deliver shares of Common Stock pursuant to the exercise of the Rights, then in each such case (or waiver each, a “Subsequent Offering Closing”), as and when it occurs, there shall be a subsequent closing under this Repurchase Agreement, so that in each case SBGC and, following the Project 6 LLC Transfer, Project 6 LLC, shall sell to the Company, and the Company shall purchase from SBGC and, following the Project 6 LLC Transfer, Project 6 LLC, the Repurchased Shares to be delivered by the Agent Company in its sole discretionthe respective Subsequent Offering Closing (it being acknowledged that it is the intention of the parties to transfer the Repurchased Shares in accordance with Direction Instructions (as defined below) provided in connection in advance of each such Subsequent Offering Closing). The occurrence of each Subsequent Offering Closing shall be subject to the condition that the representations and warranties of the SoftBank Parties in Article 2 (in the case of the conditions to a Subsequent Closing set forth the Company’s obligations) and the Company in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from Article 3 (in the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) case of the conditions to a SBGC’s, and, following the Project 6 LLC Transfer, Project 6 LLC’s, obligations) shall be true and correct as of the date of such Subsequent Offering Closing set forth as if then made. The Company shall (i) in the case of any Subsequent Offering Closing pursuant to the Underwriting Agreement or the Exchangeable Issuer Purchase Agreement (or any subsequent underwriting, initial purchaser or similar agreement as contemplated by Section 5.2 and further subject to Section 10.2(a2.6 of the Framework Agreement), in consideration for each applicable Lender’s payment of its pro rata share the case of the aggregate purchase price Executive Share Purchase or in connection with the exercise of Rights, direct the several Underwriters (or additional underwriters or initial purchasers, as applicable), Mandatory Exchangeable Issuer (or additional exchangeable issuer, as applicable), Executive Purchaser or the “Subsequent Closing Note Purchase Price”) transfer agent that received the proceeds of the Notes to be purchased by such Lenders at such Subsequent Closingexercise of the Rights, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below)applicable, and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth Company in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds by wire transfer, which shall in turn immediately pay such net proceeds to SBGC and, following the Project 6 LLC Transfer, Project 6 LLC, in immediately available funds by wire transfer, in accordance with the Borrower’s written wire instructionsinstructions provided by SBGC and, following the Project 6 LLC Transfer, Project 6 LLC, to the Company prior to the Subsequent Offering Closing as consideration for the Repurchased Shares, net of any fees, commissions, discounts and disbursements incurred thereto and to be borne by Softbank pursuant to Section 7.1 and, if then applicable, Section 7.2 of the Framework Agreement (it being acknowledged that it is the intention of the parties to effectuate such payments in accordance with Direction Instructions provided in connection in advance of each such Subsequent Offering Closing), and (ii) to the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to extent such Subsequent Closing) Offering Closing is an additional closing under the Exchangeable Issuer Purchase Agreement, sell, assign and transfer to SBGC and, following the Project 6 LLC Transfer, Project 6 LLC, the Contingent Value Right Note issued by the Mandatory Exchangeable Issuer to the Company in connection with such Subsequent Offering Closing pursuant to the Exchangeable Issuer Purchase Agreement. Each subsequent closing under this Repurchase Agreement shall occur simultaneously with the respective Subsequent Offering Closing to which it relates. The parties acknowledge that the foregoing sales, purchases and payments may be made pursuant to direction instructions in a form consistent with Annexes A and B hereto (“Direction Instructions”). The shares of Common Stock sold in such Lender is then purchasingsubsequent closings, duly executed on behalf of together with the Borrower Initial Shares and registered in the name of such Lender or its designeeExecutive Shares, are referred to herein together as the “Repurchased Shares”.

Subsequent Closings. Subject Within a period from the date of this Agreement to the satisfaction (or waiver by Longstop Date, the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitationCompany may, at the Closing), such Lender’s Commitment. Subject to the satisfaction (one or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing more closings (each a “Subsequent Closing”, and collectively the “Subsequent Closings”) of any consummate the issuance and sale of the transactions contemplated by this Section 3.2 Unissued Shares (if any) and up to 45,744,502 Series E Preferred Shares in addition to the Non ODI Purchased Shares and the issuance Purchased Shares, at a price per share equal to US$1.093 per share and on substantially the same terms and conditions as set forth in the Transaction Documents. For the avoidance of doubt, the maximum number of the additional Notes Series E Preferred Shares to be issued by the Company pursuant to this Agreement and the Lenders at such Non-ODI Share Purchase Agreement shall be 182,978,009, except as otherwise agreed by the Investors. Each subscriber of Series E Preferred Shares with respect to relevant Subsequent Closing that is required to obtain the ODI Approval to consummate its Subsequent Closing shall occur at the offices execute and deliver a counterpart signature page to this Agreement to become a party to this Agreement as of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date it executes and time delivers such counterpart signature page and, if it is not an existing shareholder of the Company, a counterpart signature page to the Shareholders Agreement to become a party to the Shareholders Agreement as of the date it executes and delivers such Subsequent Closing counterpart signature page, without further action by any Party, in which case (the “Subsequent Closing Date”A) such subscriber shall be 10:00 a.m.deemed as and have all the rights and obligations of an “Investor” and a party under this Agreement as if it had executed this Agreement, Chicago timeand all schedules and exhibits hereto shall, on where applicable, be updated to reflect such subscriber as a party hereto without the date on which need to amend this Agreement, (B) the conditions Warranties of the Warrantors set forth in Section 5.2 below 3 hereof shall be satisfied or waived in accordance with this Agreement (or such later date speak as is mutually agreed to by of the Borrower Closing and the Agent). On Warrantors shall have no obligation to update any such Warranties, and (C) the representations and warranties of any Investor set forth in Section 4 at each Subsequent Closing Date, (i) each Lender shall pay its pro rata share speak as of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Subsequent Closings. Subject Subsequent Closings shall take place at the offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on such date and at such time as the Company shall determine (each, a “Subsequent Closing” and, collectively, the “Subsequent Closings” and, together with the Initial Closing, individually, a “Closing” and, collectively, the “Closings”). The date of each applicable Subsequent Closing is referred to herein as a “Subsequent Closing Date.” At each Subsequent Closing, the Company shall deliver to each Additional Purchaser (a) an Additional Note, dated as of such applicable Subsequent Closing Date, in an aggregate original principal amount equal to the satisfaction dollar amount set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing Principal Amount” on Schedule B hereto and (or waiver b) this Agreement, executed by the Agent in its sole discretion) of Company and the conditions Additional Purchasers. The Company shall update Schedule B from time to a time as necessary upon each Subsequent Closing. At each Subsequent Closing, each Additional Purchaser shall deliver to the Company the amount set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing set forth in Section 5.2 Principal Amount” on Schedule B hereto, by any combination of (i) bank check, (ii) personal check or (iii) wire transfer of immediately available funds to such account as the Company designates. Each Additional Purchaser, who is a holder of an Existing Note and further subject who purchases an Additional Note for cash, shall be entitled to Section 10.2(aexchange (on a dollar for dollar basis), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceedon such Subsequent Closing Date, when aggregated with the principal amount of Notes acquired the Existing Note for the same principal amount of the Additional Note purchased by such Lender prior to such Subsequent Closing (includingthe Additional Purchaser for cash, without limitation, at the Closing), such Lender’s Commitment. Subject up to the satisfaction (or waiver by the Agent) principal amount of the conditions to a Subsequent Closing set forth in Section 5.2 Additional Note purchased. Each Additional Purchaser surrendering an Existing Note for exchange pursuant hereto (a) shall receive cash for accrued and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share unpaid interest on the principal amount of the aggregate purchase price (the “Subsequent Closing Existing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender being exchanged on the applicable Subsequent Closing Date and (b) hereby acknowledges and agrees that, notwithstanding any provisions of the Existing Note, any portion of the Existing Note exchanged is automatically cancelled as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on of such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Subsequent Closings. Subject to During the satisfaction period commencing after the Initial Closing Date and ending at 4:00 pm ET on February 18, 2011 (or waiver by the Agent in its sole discretion) of the conditions to a “Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(aOffering Right Period”), the Company hereby grants to each applicable Lender hereby promises Purchaser, severally and not jointly, the right to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such (“Subsequent Closing (including, without limitationOffering Right”), at the Closing)their election, such LenderPurchaser’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro pro-rata share of up to, in the aggregate purchase price among all Purchasers, 6,000,000 additional Shares (as the same may be proportionately adjusted in respect of any stock split, stock dividend, combination, recapitalization or the like with respect to the Common Stock) at the Per Share Purchase Price. Each Purchaser shall be entitled to purchase, in the aggregate, the number of additional Shares equal to 60% of the Shares purchased by such Purchaser at the Initial Closing. Any such election by a Purchaser to Exercise the Subsequent Offering Right may be exercised by each Purchaser from time to time during (but in no event more than three (3) times for any one Purchaser) the Subsequent Offering Right Period in minimum increments of 600,000 Shares (or such lesser amount as is then available to such Purchaser), by written notice from such Purchaser to the Company (“Subsequent Closing Note Purchase PriceOffering Right Notice”) ), setting forth the aggregate number of the Notes Shares to be purchased by the Purchaser (which shall not exceed the number of additional shares allocated to such Lenders Purchaser on its signature page hereto). The date on which such Shares are to be sold by the Company to the Purchasers shall be the third (3rd) Trading Day following delivery of the applicable Subsequent Offering Right Notice (each, a “Subsequent Closing Date”). The Subsequent Offering Right Notice may be delivered to the Company at such any time prior to the expiration of the Subsequent ClosingOffering Right Period. Upon satisfaction or waiver of the conditions set forth in Sections 2.3, the Borrower 2.4 and 2.5, each Subsequent Closing shall issue and sell to each Lender occur on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx Ropes & Xxxx LLP, Prudential Tower, 000 Xxxx Xxxxxx Xxxxxxxx Xxxxxx, Xxxxx 0000Xxxxxx, XxxxxxxXxxxxxxxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date other location as is the parties shall mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeagree.

Subsequent Closings. Subject In the event that the Company shall not have sold all 1,100,000 shares of the Preferred Shares at the Initial Closing, the Company and the Purchasers agree that at one or more subsequent closings (collectively, the "Subsequent Closings" and, individually, a "Subsequent Closing"; the Initial Closing and each Subsequent Closing referred to herein as a "Closing" and collectively as the "Closings"), the Company may issue and sell any of the unsold Preferred Shares ("Additional Shares") to one or more accredited investors who shall be subject to the satisfaction approval (or waiver by the Agent in its sole discretionwhich approval shall not be unreasonably withheld) of each of Battery Ventures IV, L.P. ("Battery") and the conditions Board of Directors of the Company (the "Additional Purchasers", which Additional Purchasers may also be Purchasers or affiliates of Purchasers); provided, however, that no such approval of Battery shall be required with respect to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a)any Additional Purchasers who (i) are listed on Exhibit 1.04(b) or (ii) are admitted as Additional Purchasers after January 1, 1999. In all events each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject other than with respect to the satisfaction (or waiver by the Agent) option of the conditions Battery and Battery Investments Partners IV, LLC to a Subsequent Closing purchase Additional Shares as set forth in Section 5.2 and further subject below) shall occur on or before January 31, 1999 and, provided, further, any shares sold to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by Additional Purchasers (other than Battery or any of its affiliates) shall not exceed 501,320 of the Preferred Shares, of which no more than 80,264 of such Preferred Shares shall be issuable pursuant to conversion of existing indebtedness or contractual obligations of the Company. The Company and the Purchasers further agree that (i) the Company shall amend this Section 3.2 and Agreement solely to provide for the issuance of the additional Notes to be issued Additional Shares to the Lenders at such Subsequent Closing Additional Purchasers under the terms and conditions of this Agreement and (ii) the Additional Purchasers shall occur at become parties to this Agreement as amended by executing counterparts hereof. At least 20 days prior to the offices date of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date Company shall notify Battery, and provide Battery with the right (but not the obligation) to exercise the option (described in Section 1.04(c) below) at the time of such Subsequent Closing Closing. Notwithstanding the foregoing, in the event that the Company sells at least 263,158 Additional Shares to a single Additional Purchaser (or group of affiliated Additional Purchasers) at any Subsequent Closing, then the “Subsequent Closing Date”option provided to Battery (as described in Section 1.04(c)) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender 7 -3- expire if not exercised at such Subsequent Closing, by wire transfer of immediately available funds in accordance with Closing following the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (notice provided for in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeepreceding sentence.

Subsequent Closings. Subject From time to time, the satisfaction (or waiver by the Agent in its sole discretion) Funding Committee of the conditions Successor may by written notification require the Purchasers to purchase, or the Purchaser upon the election of the holder of a Subsequent Closing majority of the aggregate number of outstanding shares of Series B Preferred, Series C Preferred and Series D Preferred, shall have the right to purchase, any or all of the Shares not purchased at the First Closing. Upon receipt of such a demand for funding or the making of such election, the Purchasers shall purchase the amount of Shares set forth in Section 5.2 and further such notification or subject to Section 10.2(a)such election; PROVIDED, HOWEVER, that each applicable Lender hereby promises Purchaser's obligation to purchase from such Shares shall be several and not joint; AND PROVIDED FURTHER that each Purchaser's obligation shall be to purchase that number of such Shares that bears the Borrower an aggregate principal amount same ratio to the total number of additional Notes not such Shares as such Purchaser's committed number of Shares bears to exceedthe total number of Shares as set forth on Attachment 1. The closing of the purchase and sale of such Shares under this Agreement (each, when aggregated with a "Subsequent Closing" and collectively, the principal amount "Subsequent Closings") shall be held at the offices of Notes acquired by Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx Xxxx 00000 at 10:00 a.m., Eastern Standard Time, on the fifth business day following the Purchaser's receipt of notice of the Successor's request or delivery to Successor of the Purchasers' election, or at such Lender prior to other time and place as the Successor and the Purchasers may mutually agree upon. The date of any such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject is hereinafter referred to the satisfaction (or waiver by the Agent) of the conditions to as a "Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at Date." At any such Subsequent Closing, the Borrower shall issue and sell Successor will deliver to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from Purchasers certificates representing the Borrower on such Subsequent Closing Date, a principal amount of Notes Shares purchased by the Purchasers registered in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any name of the transactions contemplated by this Section 3.2 and Purchasers (or their respective nominees) against payment to the issuance Successor of the additional Notes to be issued to the Lenders at full purchase price for such Subsequent Closing shall occur at the offices amount of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, Shares by wire transfer of immediately available funds in accordance with or by cancellation of indebtedness or any combination thereof; PROVIDED, HOWEVER, that the Borrower’s written wire instructionsratio of the aggregate purchase price of the Series B Preferred purchased at any such Subsequent Closing to the aggregate purchase price of the Series C Preferred and Series D Preferred purchased at such Subsequent Closing shall be 5 to 1, and (ii) for any Purchaser who is committed to purchase Series D Preferred as set forth on Attachment 1, the Borrower ratio of the purchase price for such Purchaser's Series C Preferred purchased at such closing to the purchase price for such Purchaser's Series D Preferred purchased at such closing shall deliver to each Lender equal the Notes (in the denominations as ratio of such Lender shall have requested prior Purchaser's committed number of Series C Preferred to such Subsequent Closing) which Purchaser's committed number of Series D Preferred, each as set forth opposite such Lender is then purchasing, duly executed Purchaser's name on behalf of the Borrower and registered in the name of such Lender or its designeeAttachment 1.

Subsequent Closings. Subject to Subsequent sales of Series V Preferred Stock and Series V-1 Preferred Stock may occur on or around February 2, 2001 or at the satisfaction (or waiver by the Agent in its sole discretion) discretion of the conditions to Company at a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a)later date which shall be no later than June 1, each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price 2001 (the “Subsequent Closing Note Purchase Price”) of Closing,” and together with the Notes to be purchased by such Lenders at such Subsequent Initial Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below“Closing”), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any Company may sell up to the balance of the transactions contemplated by this Section 3.2 authorized number of shares of Series V Preferred Stock and Series V-1 Preferred Stock not sold at the issuance Initial Closing to those Subsequent Purchasers who shall be set forth on Schedule B, at a price not less than $1.50 per share (except with respect to the shares of the additional Notes to be Series V Preferred Stock and Series V-1 Preferred Stock issued to the Lenders at such Subsequent Closing holders of Bridge Warrants which shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold at a price of $0.01 per share as required by the terms of the Bridge Warrants, to the extent such holders of Bridge Warrants exercise their rights thereunder prior to the Subsequent Closing in accordance with the procedures set forth by Company’s Board of Directors). Upon the terms set forth herein, each Subsequent Purchaser listed on the Schedule of Subsequent Purchasers as of the Initial Closing Date, hereby agrees to purchase at the Subsequent Closing the number of shares of Series V Preferred Stock and Series V-1 Preferred Stock set forth next to such Lender Purchaser’s name on the Schedule of Subsequent Purchasers at such a price per share of $1.50 per share of Series V Preferred Stock and Series V-1 Preferred Stock as set forth on Schedule B hereto. At the Subsequent Closing, subject to the Subsequent Purchasers’ deliveries hereunder, the Company will deliver to each Subsequent Purchaser the stock certificates representing the Series V Preferred Stock and Series V-1 Preferred Stock purchased at the Subsequent Closing with each registered in such Subsequent Purchaser’s name, upon payment of the purchase price thereof by a cashier’s or certified check, or by wire transfer of immediately available funds to an account designated by the Company in accordance with the Borrower’s written wire instructionswriting, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to amount set forth opposite such Subsequent ClosingPurchaser’s name on Schedule B hereto. Any such Subsequent Purchaser shall become a party to this Agreement, that certain Registration Agreement (as defined below) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeVoting Agreement (as defined below).

Subsequent Closings. Subject The Investors on a pro-rata basis, or any part of them and any additional persons joining the Investors to whom an Investor has assigned his/her right to purchase any portion of the Takedown Shares, where such additional persons (“Additional Investors”) have signed Purchase Agreements similar to this Agreement and escrow agreements similar to the satisfaction (or waiver by Escrow Agreement in a form acceptable to the Agent in Company and its legal counsel shall have the right to purchase, at their sole discretion, additional number of shares provided that the aggregate number of shares purchased pursuant to Section 1.2 and 1.3 shall not exceed 15,000,000 (“Takedown Shares”), for the same purchase price per share paid hereunder (as adjusted to reflect stock dividends, stock splits, re-capitalization and the like) and otherwise on the same terms and conditions as set forth herein. Closings of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount sale of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing Takedown Shares (each a “Subsequent Closing”) of shall be held at such location and time as may be notified at least three business days in advance in writing by any of the transactions contemplated Investors Representatives to the Company, within 90 days after the date of the first Closing pursuant to Section 1.2 herein above. At a Subsequent Closing the Company shall deliver to the Escrow Agent pursuant to the Escrow Agreements on behalf of each Investor and/or Additional Investor participating in such Subsequent Closing (i) a certificate representing the Common Stock that the Investor is purchasing pursuant to the terms hereof delivered to the Investor; (ii) an executed Warrant exercisable by each Investor for a number of shares equal to the Shares purchased by such Investor (“Takedown Warrant”); (iii) a receipt for the Purchase Price actually received; and (iv) the other documents listed in Section 4 of this Section 3.2 Agreement, against payment of the purchase price therefor by certified check, bank draft, wire transfer or any combination thereof and execution of this Agreement and any other Transaction Agreement as defined herein, in the event not already executed by such Investor. The Investors and the Company further agree that: (i) the Company shall amend this Agreement solely to provide for the issuance of the additional Notes to be issued Takedown Shares and Takedown Warrants to the Lenders at such Subsequent Closing shall occur at Investors and/or Additional Investors under the offices terms and conditions of Xxxxxx Xxxxxx Xxxxxxxx LLPthis Agreement, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower Additional Investors shall deliver become parties to this Agreement and other Transaction Agreements. The terms “Shares”, “Warrants”, “Closing” and “Investor”, when used in this Agreement shall respectively be deemed to include such Takedown Shares and Takedown Warrants as are issued, each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower Closing and registered in the name of such Lender or its designeeeach Additional Investor.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent in its sole discretion) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Restatement Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the US_142815097 Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.

Subsequent Closings. Subject Upon the purchase of any Additional Notes and Additional Warrants subject to the satisfaction (or waiver by the Agent in its sole discretion) of the closing conditions to a Subsequent Closing set forth in Section 5.2 Sections 5.1, 5.3 and further subject to Section 10.2(a)5.4, each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, Closings shall take place at the Closing)offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on such Lender’s Commitment. Subject to date and at such time as the satisfaction (or waiver by Borrowers and the Agent) , acting on behalf of the conditions to Purchasers, mutually agree upon in writing (each, a “Subsequent Closing set forth in Section 5.2 Closing” and further subject to Section 10.2(a)collectively, in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closings”). The date of each applicable Subsequent Closing Note Purchase Price”) of the Notes is referred to be purchased by such Lenders at such herein as a “Subsequent Closing Date.” At each Subsequent Closing, the Borrower Borrowers shall issue and sell deliver to each Lender on the applicable Subsequent Closing Date Additional Purchaser (i) an Additional Note, dated as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on of such Subsequent Closing Date, a in an original principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued equal to the Lenders at dollar amount set forth opposite such Subsequent Closing shall occur at Additional Purchaser’s name under the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPheading “Additional Note Purchase Price” on Schedule II hereto, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) which shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to updated by the Borrower and the Agent). On , acting on behalf of the Purchasers, from time to time as necessary upon each Subsequent Closing, with respect to such Additional Purchaser and (ii) Additional Warrants for the number of shares of Common Stock set forth opposite such Additional Purchaser’s name under the heading “Number of Additional Closing DateWarrant Shares” in Schedule II hereto, all against payment in the amounts set forth opposite such Additional Purchaser’s name under the heading “Additional Note Purchase Price” on Schedule II hereto, by any combination of (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by check or (ii) wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of account as the Borrower and registered in the name of such Lender or its designeeBorrowers designate.

Subsequent Closings. Subject (a) The Parties acknowledge and agree that it is their intent that Welltower contribute each Subsequent Facility to the satisfaction (or waiver Holdings by the Agent in its sole discretion) of the conditions transfer to a Subsequent Closing set forth PropCo or transfer of an Existing PropCo to Holdings in Section 5.2 and further subject up to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of two (2) additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price transactions (the “Subsequent Closing Note Purchase Price”) consummation of the Notes each such transaction is referred to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (herein as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at ). The first such Subsequent Closing shall occur at take place on a date not more than ninety (90) days after the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPInitial Closing Date (i.e., 000 Xxxx Xxxxxx XxxxxxWednesday, Xxxxx 0000December 23, Xxxxxxx2020). Thereafter, Xxxxxxxx 00000if there are remaining Subsequent Facilities, the second (and final) Subsequent Closing may take place on a date (the “Long Stop Date”) not more than one hundred thirty-five (135) days after the Initial Closing Date (i.e., Monday, February 8, 2021). With respect The value attributable to each such Subsequent Facility shall be that set forth in the Price Allocation. Unless otherwise agreed by the Parties, any Subsequent Facility not contributed pursuant hereto by the Long Stop Date, shall not be transferable hereunder. Welltower shall use good faith efforts to keep Investor informed as to its progress in obtaining the Subsequent Consents for each Subsequent Facility. If Welltower wishes to initiate a Subsequent Closing, Welltower may give Investor no less than ten (10) Business Days’ written notice that it intends to hold a Subsequent Closing as to those Subsequent Facilities where the Subsequent Consents have been obtained, listing the Subsequent Facilities to be included and specifying the date and time of such Subsequent Closing (the “Subsequent Closing Date”) ). Following the provision of such notice of a Subsequent Closing, the following shall be 10:00 a.m.apply, Chicago time, on subject to the date on which the applicable conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower 5.04, Section 5.05 and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designee.Section 5.06:

Subsequent Closings. Subject Upon the purchase of any Additional Notes, subject to the satisfaction (or waiver by the Agent in its sole discretion) of the closing conditions to a Subsequent Closing set forth in Section 5.2 Sections 4.1, 4.3 and further subject to Section 10.2(a)4.4 hereof, each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, Closings shall take place at the offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on such date and at such time as the Company and the Additional Purchasers mutually agree upon in writing (each, a “Subsequent Closing)” and, such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a)collectively, in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closings” and, together with the Initial Closing, individually, a “Closing” and, collectively, the “Closings”). The date of each applicable Subsequent Closing Note Purchase Price”) of the Notes is referred to be purchased by such Lenders at such herein as a “Subsequent Closing Date.” At each Subsequent Closing, the Borrower Company shall issue and sell deliver to each Lender on the applicable Subsequent Closing Date (Additional Purchaser an Additional Note, dated as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on of such Subsequent Closing Date, a in an original principal amount of Notes in equal to the dollar amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a set forth opposite such Additional Purchaser’s name under the heading “Subsequent Closing”) of any of Closing Note Principal Amount” on Schedule B hereto, which shall be updated by the transactions contemplated by this Section 3.2 and the issuance of the additional Notes Company from time to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to time as necessary upon each Subsequent Closing, with respect to such Additional Purchaser, all against payment in the date and time of amounts set forth opposite such Subsequent Closing (Additional Purchaser’s name under the heading “Subsequent Closing Date”) shall be 10:00 a.m.Note Principal Amount” on Schedule B hereto, Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, any combination of (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closingbank check, by (ii) personal check or (iii) wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of account as the Borrower and registered in the name of such Lender or its designeeCompany designates.

Subsequent Closings. Subject to the satisfaction (or waiver by the Agent The Company may, in its sole discretion) of discretion from time to time from the conditions to date hereof until December 31, 2025, deliver a Subsequent Closing Notice to the Purchasers, and the Purchasers may, in their sole discretion upon written notice to the Company within three (3) Business Days of receipt thereof, accept or reject such Subsequent Closing Notice (and if no such notice is delivered by the Purchasers within such time period, such Subsequent Closing Notice shall be deemed rejected and shall be null and void). Once a Subsequent Closing Notice has been accepted in accordance with the preceding sentence, upon the terms and subject to the conditions set forth herein, the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, the number of Closing Shares equal to the quotient of (i) the aggregate Subscription Amount (as set forth in such Subsequent Closing Notice), divided by (ii) the Purchase Price (with each Purchaser being obligated to purchase its pro rata portion of such Closing Shares, consistent with each Purchaser’s Closing Shares purchased at the Initial Closing, unless otherwise agreed to by the Parties). Each Purchaser acquiring Closing Shares at a Subsequent Closing shall deliver to the Company, via wire transfer, immediately available funds equal to such Purchaser’s Subsequent Subscription Amount pursuant to Section 2.3(b)(ii)(1), and the Company shall deliver to each Purchaser its respective Closing Shares pursuant to Section 2.3(b)(i)(1), and the Company and each Purchaser shall deliver the other items set forth in Section 5.2 and further subject to Section 10.2(a), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to 2.3(b) deliverable at such Subsequent Closing. Each Subsequent Closing shall occur remotely upon the later of (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the i) immediately following satisfaction (or waiver by the Agent) of the covenants and conditions to a Subsequent Closing set forth in Section 5.2 2.4(b) and further subject to Section 10.2(a)(ii) the date, in consideration if any, specified for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders at such Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on such Subsequent Closing Dateas set forth in the Subsequent Closing Notice (each such date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing shall occur at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Notwithstanding the foregoing, upon written notice to the Company accompanying any Subsequent Closing DateNotice, (i) each Lender shall pay any Purchaser may designate one or more of its pro rata share of the applicable Subsequent Affiliates to purchase Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Shares in a Subsequent Closing, by wire transfer of immediately available funds in accordance with which case such Affiliate shall execute a joinder to this Agreement, in a form reasonably acceptable to the Borrower’s written wire instructionsCompany, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeethereafter constitute a “Purchaser” hereunder for all purposes.

Subsequent Closings. Subject to At any time, on or after February 3, 1999, upon the satisfaction mutual agreement of the Company and any additional prospective investors (or waiver by the Agent in its sole discretion"Subsequent Closing Purchasers"), the Company may conduct additional closings (the "Subsequent Closings") of the conditions to a purchase and sale of Preferred Stock ("Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(aSecurities"), each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, at the Closing), such Lender’s Commitment. Subject to the satisfaction (or waiver by the Agent) of the conditions to a Subsequent Closing set forth in Section 5.2 and further subject to Section 10.2(a), in consideration for each applicable Lender’s payment of its pro rata share of provided that the aggregate purchase price (the “Subsequent Closing Note Purchase Price”) of the Notes to be purchased by such Lenders Shares sold at such the Initial Closing and the Subsequent Closing, the Borrower shall issue and sell to each Lender on the applicable Subsequent Closing Date (as defined below), and each Lender severally, but Closings does not jointly, agrees to purchase from the Borrower on such Subsequent Closing Date, a principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Saleexceed $6 million. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued to the Lenders at such Subsequent Closing Closings shall occur take place at the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPFulbright & Jawoxxxx X.X.P., 000 Xxxx Xxxxxx 666 Xxxxx Xxxxxx, Xxxxx 0000Xxx Xxxx, XxxxxxxXxx Xxxx 00000 xx 10:00 a.m., Xxxxxxxx 00000New York time, or at such other locations as may be agreed upon among the Subsequent Closing Purchasers purchasing Subsequent Closing Securities at such closings and the Company (such dates and times being called the "Subsequent Closing Dates"). With respect At the Subsequent Closings, or as soon as practicable thereafter, the Company shall issue and deliver to each Subsequent ClosingClosing Purchaser a stock certificate or certificates in definitive form, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share of the applicable Subsequent Closing Note Purchase Price to the Borrower for the Notes to be issued and sold to such Lender at such Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, and (ii) the Borrower shall deliver to each Lender the Notes (in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender Subsequent Closing Purchaser, representing the Shares being purchased by it at such Subsequent Closings. On each of the Subsequent Closing Dates this Agreement shall be amended by adding the name and address of each such Subsequent Closing Purchaser to the Schedule of Purchasers attached hereto, along with the number of Shares purchased and the aggregate purchase price to be paid by each Subsequent Closing Purchaser, and as payment in full for the Shares being purchased by it at each Subsequent Closing, and against delivery of the stock certificates therefor as aforesaid, each Subsequent Closing Purchaser shall deliver to the Company a certified or its designeebank check in the amount set forth opposite the name of such Purchaser in the column labeled "Total Investment" on the Schedule of Purchasers, as so amended, or shall transfer such sum to the account of the Company by wire transfer. Following such amendment to this Agreement, each Subsequent Purchaser at each Subsequent Closing shall be deemed a Purchaser for all purposes hereunder and all such Subsequent Closing Securities shall be deemed Shares.

Subsequent Closings. Subject Upon the purchase of any Additional Notes and Additional Warrants subject to the satisfaction (or waiver by the Agent in its sole discretion) of the closing conditions to a Subsequent Closing set forth in Section 5.2 Sections 5.1, 5.3 and further subject to Section 10.2(a)5.4, each applicable Lender hereby promises to purchase from the Borrower an aggregate principal amount of additional Notes not to exceed, when aggregated with the principal amount of Notes acquired by such Lender prior to such Subsequent Closing (including, without limitation, Closings shall take place at the Closing)offices of Pillsbury Xxxxxxxx Xxxx Xxxxxxx LLP, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, on such Lender’s Commitment. Subject to date and at such time as the satisfaction (or waiver by Borrowers and the Agent) , acting on behalf of the conditions to Purchasers, mutually agree upon in writing (each, a “Subsequent Closing set forth in Section 5.2 Closing” and further subject to Section 10.2(a)collectively, in consideration for each applicable Lender’s payment of its pro rata share of the aggregate purchase price (the “Subsequent Closings”). The date of each applicable Subsequent Closing Note Purchase Price”) of the Notes is referred to be purchased by such Lenders at such herein as a “Subsequent Closing Date.” At each Subsequent Closing, the Borrower Borrowers shall issue and sell deliver to each Lender on the applicable Subsequent Closing Date Additional Purchaser (i) an Additional Note, dated as defined below), and each Lender severally, but not jointly, agrees to purchase from the Borrower on of such Subsequent Closing Date, a in an original principal amount of Notes in the amount each Lender has agreed in writing to pay in respect thereof, pursuant to a Notice of Purchase and Sale. The closing (each a “Subsequent Closing”) of any of the transactions contemplated by this Section 3.2 and the issuance of the additional Notes to be issued equal to the Lenders at dollar amount set forth opposite such Subsequent Closing shall occur at Additional Purchaser’s name under the offices of Xxxxxx Xxxxxx Xxxxxxxx LLPheading “Additional Note Purchase Price” on Schedule II hereto, 000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000. With respect to each Subsequent Closing, the date and time of such Subsequent Closing (the “Subsequent Closing Date”) which shall be 10:00 a.m., Chicago time, on the date on which the conditions set forth in Section 5.2 below shall be satisfied or waived in accordance with this Agreement (or such later date as is mutually agreed to updated by the Borrower and the Agent). On each Subsequent Closing Date, (i) each Lender shall pay its pro rata share acting on behalf of the applicable Subsequent Closing Note Purchase Price Purchasers, from time to the Borrower for the Notes to be issued and sold to such Lender at such time as necessary upon each Subsequent Closing, by wire transfer of immediately available funds in accordance with the Borrower’s written wire instructions, respect to such Additional Purchaser and (ii) Additional Warrants for the Borrower shall deliver to each Lender number of shares of Common Stock set forth opposite such Additional Purchaser’s name under the Notes (heading “Number of Additional Closing Warrant Shares” in the denominations as such Lender shall have requested prior to such Subsequent Closing) which such Lender is then purchasing, duly executed on behalf of the Borrower and registered in the name of such Lender or its designeeSchedule II hereto.