Common use of Closings Clause in Contracts

Closings. (a) The Initial Closing shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each Investor.

Closings. (a) The purchase, sale and issuance of the Shares shall take place at one or more closings (each of which is referred to in this Agreement as a “Closing”). The initial Closing (the “Initial Closing Closing”) of the purchase and sale of 15,014,042 of the Shares described in Section 1.1 above shall take place at the offices of Weil, Gotshal Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, XxxxxxProfessional Corporation, Xxxxxxxxxxxxxlocated at 000 X. Xxxxxxx xx Xxxxx Xxxxxxx X., on June 18Xxx Xxxxx IV, 2004Fifth Floor, or at such other timeAustin, date or place as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares Texas 78746-5546 (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase PriceWSGR Offices”). (b) From time to time up to and including the third (3rd) anniversary of , at 10:00 AM local time, on the date of this Agreement, or at such other time and place as the Board Company and Investors purchasing in the aggregate at least a majority of Directors may the Shares to be sold pursuant to this Agreement at the Initial Closing mutually agree upon orally or in its sole discretion require each writing. (b) The purchase, sale and every Investor to purchase its pro rata percentage issuance of an additional 291,175 of the Shares (as reflected equitably adjusted for stock splits, dividends, combinations, recapitalizations and the like) to the Investors set forth on Schedule 2.1A-1 attached hereto (collectively, the “HSR Investors”) of at the Series A Shares representing all or D Purchase Price (as equitably adjusted for stock splits, dividends, combinations, recapitalizations and the like) shall take place at a portion of subsequent closing (the aggregate unsatisfied Subscription Obligations of the Investors (each, a “First Subsequent Closing”). The First Subsequent Closings, if any, shall Closing will take place at the offices WSGR Offices at 10:00 AM local time, on a date of Weilwithin three (3) business days after the expiration of any waiting periods applicable to the sale of such Shares to such HSR Investors under the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, Gotshal & Xxxxxx LLPas amended (“HSR”), 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or time of day and place as the Company and such HSR Investors mutually agree upon orally or in writing. If the First Subsequent Closing shall not have occurred on or prior to December 15, 2008, either the Company or the HSR Investors (the “Terminating Party”) may terminate this Section 1.2(b) upon written notice (the “Termination Notice”) given to the other party; provided, however, that if the Terminating Party is in breach of any of its representations, warranties, covenants or agreements set forth in this Agreement, such Terminating Party may not deliver a Termination Notice, and any purported delivery of such Termination Notice shall have no effect. Each of the Company and the HSR Investors shall use commercially reasonable efforts to cause the Company and the HSR Investors to prepare and timely file all such filings as may be agreed upon by required to comply with HSR (the Parties. With respect to “HSR Filings”) as soon as practicable after the date hereof, but in any contemplated Subsequent event the Company and the HSR Investors shall file such HSR Filings on or before the earlier of ten (10) business days after the Initial Closing or November 6, 2008. (c) At each Closing, the Company shall deliver to each Investor purchasing Shares in such Closing a notice (a “Payment Notice”) not less than certificate representing the greater Shares that such Investor is purchasing against payment of twelve (12) Business Days the purchase price therefor by check, wire transfer, cancellation of indebtedness, or seventeen (17) calendar days prior any combination thereof. In the event that payment by an Investor is made, in whole or in part, by cancellation of indebtedness, then such Investor shall surrender to the contemplated Subsequent Company for cancellation at such Closing Date, which notice any evidence of such indebtedness or shall specify (i) execute an instrument of cancellation in form and substance acceptable to the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each InvestorCompany.

Closings. (a) The Initial Closing sale and purchase of the Notes to be purchased by each Purchaser shall take place occur at the offices of Weil, Gotshal Winston & Xxxxxx LLP, 000 Xxxxxxx Xxxx Xxxxxx, XxxxxxXxx Xxxx, XxxxxxxxxxxxxXxx Xxxx 00000, at 10:00 a.m. New York time, at two closings (each a “Closing” and respectively the “First Closing” and the “Second Closing”). The First Closing shall be on June 18September 30, 2004, 2014 or at on such other time, date or place Business Day thereafter as shall may be agreed upon by the Parties. At Company and the Initial Closing, each of Purchasers purchasing the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place Notes sold at the offices of WeilFirst Closing. The Second Closing shall be on December 30, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx 2014 or on the date specified in the Payment Notice described in the following sentence or at such other time, date or place Business Day thereafter as shall may be agreed upon by the PartiesCompany and the Purchasers purchasing the Notes sold at the Second Closing. With respect to any contemplated Subsequent At each Closing, the Company shall will deliver to each Investor a notice (a “Payment Notice”) not less than Purchaser the greater Notes of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares series to be purchased by such Purchaser in the form of a single Note for each Investorseries of the Notes to be purchased by such Purchaser (or such greater number of Notes in denominations of at least $100,000 as such Purchaser may request) dated the date of such Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number 00000000, account description: Kentucky Power Co. – Dist., at Citibank, N.A., 000 Xxxx Xxxxxx, Xxx Xxxx, XX 00000, ABA No. 02100089. If at any Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

Closings. (a) The Upon the terms and subject to the satisfaction or waiver of all the conditions to such closing set forth in this Agreement, the Initial Closing and each Subsequent Closing shall take place at the offices of Weil10:00 a.m., Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, XxxxxxxxxxxxxBoston time, on June 18dates to be specified by the parties, 2004, or at such other time, date or place as which shall be agreed upon by (i) in the Parties. At case of the Initial Closing, each no later than the fifth Business Day after the satisfaction or waiver of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants conditions to such closing set forth opposite such Investor’s name on Schedule 2.1in this Agreement, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of no earlier than five Business Days after the date of this Agreement, and (ii) in the Board case of Directors may any Subsequent Closing, on the date specified by AIMCO in its sole discretion require each and every Investor the notice given pursuant to purchase its pro rata percentage (as reflected on Schedule 2.1SECTION 2.3(b) of Series A Shares representing all or a portion or, if any of the aggregate unsatisfied Subscription Obligations of the Investors (eachShares have not yet been purchased by AIMCO hereunder, a “Subsequent Closing”). Subsequent Closingson October 1, if any1997, shall take place in each case, at the offices of WeilSkadden, Gotshal Arps, Slate, Xxxxxxx & Xxxxxx Xxxx LLP, 000 Xxxxxxx Xxx Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time00000-0000, unless another date or place as shall be is agreed upon to in writing by the Parties. With respect parties hereto. (b) AIMCO shall give the Sellers notice of its intention to any contemplated effect a Subsequent Closing, Closing within 10 days of the Company shall deliver to each Investor a notice (a “Payment Notice”) not less AIMCO Gross Asset Value increasing by more than $100 million from the greater AIMCO Gross Asset Value as of twelve (12) Business Days the Initial Closing Date or seventeen (17) calendar days prior to as of the contemplated most recent Subsequent Closing Date, which whichever is later. Such notice shall specify (i) the contemplated date of the proposed Subsequent Closing Date Closing, which shall not be more than ten Business Days after the date of such notice, and (ii) the number of Series A Shares to be purchased at such Subsequent Closing, which shall not be less than the quotient obtained by each Investordividing (x) the sum of (I) 5% of such increase in AIMCO Gross Asset Value, and (II) any additional financing that AIMCO is able to obtain in connection with such Subsequent Closing, by (y) $20. Such notice shall be accompanied by a certificate signed by the secretary or an assistant secretary of AIMCO, certifying as to the AIMCO Board of Directors' determination of such AIMCO Gross Asset Value.

Closings. (a) The Initial Closing sale and purchase of the Notes to be purchased by each Purchaser shall take place occur at the offices of Weil, Gotshal & Xxxxxxx and Xxxxxx LLP, 000 Xxxxxxx Xxxx Xxxxxx Xxxxxx, XxxxxxXxxxxxx, XxxxxxxxxxxxxXX 00000, at 10:00 a.m., Chicago time, at a closing (i) with respect to the Series A Notes, on June 18February 1, 2004, 2010 or at on such other timeBusiness Day thereafter on or prior to February 4, date or place 2010 as shall may be agreed upon by the Parties. At Company and the Initial Closing, each of the Investors shall purchase that number of Series A Shares Purchasers (the “Initial Series A SharesFirst Closing”) andand (ii) with respect to the Series B Notes, if applicableon March 1, that number of Warrants set forth opposite such Investor’s name 2010 or on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other timeBusiness Day thereafter on or prior to March 4, date or place 2010 as shall may be agreed upon by the Parties. With respect to any contemplated Subsequent Company and the Purchasers (the “Second Closing” and, together with the First Closing, a “Closing” and, collectively, the “Closings”). At each Closing the Company shall will deliver to each Investor a notice (a “Payment Notice”) not less than Purchaser the greater Notes of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares respective series to be purchased by such Purchaser at the related Closing in the form of a single Note (or such greater number of Notes in denominations of at least $250,000 as such Purchaser may request) for each Investorseries dated the date of the related Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number 000-00000-0 at HSBC Bank USA, N.A., 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000-0000, SWIFT XXXXXX00, ABA 000-000-000, Account Name: Waters Corporation. If at any Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 with respect to such Closing shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

Closings. (a) The Initial Closing first closing of the purchase and sale of the Series A Preferred Stock (the "First Closing") shall take place at the offices of Weil9:00 a.m., Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx------------- local time, on June 18September 7, 20042000, or such other date as promptly thereafter as of which all of the conditions relating to the First Closing set forth in Article VII hereof shall have been satisfied or duly waived or at such other timetime and date as the parties hereto shall agree in writing (the "First Closing Date"), date at the offices of Xxxxxx & Xxxxxxx, 000 Xxxxx Xxxxxx, ------------------ Xxxxx 0000, Xxx Xxxx, XX 00000-0000 or at such other place as the parties hereto shall agree in writing. (b) If necessary, a second closing of the purchase and sale of the Series A Preferred Stock (the "Second Closing") shall take place at -------------- such date and time to be agreed upon by the Parties. At the Initial Closing, each parties hereto as promptly as practicable after as of which all of the Investors conditions set forth in Article VII hereof shall purchase that number of Series A Shares have been satisfied or duly waived as the parties hereto shall agree in writing (the “Initial Series A Shares”) and"Second Closing Date"), if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal Xxxxxx & Xxxxxx LLP------------------- Xxxxxxx, 000 Xxxxxxx Xxxxx Xxxxxx, XxxxxxXxxxx 0000, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence Xxx Xxxx, XX 00000-0000 or at such other time, date or place as the parties hereto shall be agreed upon agree in writing. On each Closing Date (i) the Purchaser shall deposit into a bank account designated by the Parties. With respect Company on such Closing Date, by wire transfer of immediately available funds, an amount equal to any contemplated Subsequent Closingthe aggregate purchase price of the Shares being purchased from the Company pursuant to Section 2.1(b) or (c), as the case may be, and (ii) the Company shall deliver to each Investor a notice the Purchaser, against payment of the purchase price therefor, certificates representing the Shares, being purchased by Purchaser pursuant to Section 2.1(b) or (a “Payment Notice”c). The Shares shall be in definitive form and registered in the name of the Purchaser or its nominee or designee and in such denominations (including fractional shares) as the Purchaser shall request not less later than the greater of twelve (12) Business Days or seventeen (17) calendar days one business day prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each Investor.

Closings. (a) The Initial Closing shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its his or its, as the case may be, pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each Investor.

Closings. (a) The Initial Subject to prior termination of this Agreement by BMI -------- pursuant to Article 14, the consummation of the transfer and conveyance of the Transferred Interests and other transactions contemplated by this Agreement shall occur in multiple closings (individually, a "Closing", and collectively, the "Closings"), and each such Closing shall take place at the offices of Weil, Gotshal & Xxxxxx Xxxxxxxxxx Xxxxxxxx LLP, 000 Xxxxxxx Suite 2800, 0000 Xxxxxxxxx Xxxxxx, XxxxxxXxxxxxx, XxxxxxxxxxxxxXxxxxxx 00000-0000, on June 18, 2004, or at such other timetimes and on such dates (each, date or place the "Closing Date"), as shall be agreed upon by specified in the Parties. At closing schedule set forth in Schedule 4.1 attached hereto, as modified pursuant to the Initial Closing, each of the Investors shall purchase that number of Series A Shares terms hereof (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”"Closing Schedule"). (b) From time Notwithstanding anything to time up the contrary contained herein, the parties acknowledge and agree that each Closing shall be subject to the provisions of Articles 10 and including the third (3rd) anniversary of the date 11 of this Agreement, the Board of Directors may in its sole discretion require each Agreement and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at after all the offices of Weilconditions set forth in such Articles 10 and 11 have been satisfied or waived. The parties further acknowledge that the initial Closing (the "Initial Closing") shall take place on June 1, Gotshal & Xxxxxx LLP1999, 000 Xxxxxxx Xxxxxxor on such other date as the parties may agree (the "Initial Closing Date"), Xxxxxxand thereafter each Closing shall take place as provided in the Closing Schedule; provided, Xxxxxxxxxxxxx however, that in no event -------- ------- shall the final Closing (the "Final Closing") occur later than on the date specified in last day of the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice calendar month which is ten (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (1710) calendar days prior to months after the contemplated Subsequent calendar month of the Initial Closing (the "Final Closing Date"). (c) The parties shall use commercially reasonable efforts to include in each Closing at least two hundred fifty (250) Sites, which notice shall specify (i) whether as an Included Site, Excluded Site or Maintained Site, including, without limitation, any Sites deferred pursuant to Section 3.3 or 4.6 from the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each Investorprevious Closings.

Closings. Subject to the satisfaction of the conditions set -------- forth in this Agreement, the closing of the purchase by the Investor of Put Shares following a Put (aa "Closing") The Initial shall occur on the third Trading Day ------- following the end of the Valuation Period for such Closing shall take place (or such other date as is mutually agreed to by the Company and the Investor) (a "Closing Date") at ------------ the offices of Weil, Gotshal Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx0000 Xxxxxx xx xxx Xxxxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the PartiesXX 00000 ("Xxxxxxxx Xxxxxxxxx"). At the Initial Closing, least one Business ------------------ Day prior to each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent ClosingClosing Date, the Company shall deliver (or cause to be delivered) into escrow with Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree): (1) the certificates, registered in the name of the Investor, representing the Put Shares to be issued and sold to the Investor at such Closing and meeting the requirements of Section 5.3; (2) the certificate contemplated by Section 6.1(c); (3) the legal opinion contemplated by Section 6.1(f); (4) a writing, executed by each of the Investor and the Company concurring as to (x) the total number of Put Shares that are to be issued and sold at such Closing and the number of Warrant Shares to vest at such Closing under the Vesting Warrant and the vesting warrant issued to Aspen Capital Partners, Inc. ("Broker") and (y) the Purchase Price for the Put Shares issuable ------ to the Investor at such Closing, and (5) all other documents, instruments and writings required to be delivered by it pursuant to the Transaction Documents (as defined herein) in order to effect a Closing hereunder (the items contemplated by clauses (1) through (5) above are collectively referred to as the "Company Required Items"). Xxxxxxxx Xxxxxxxxx (or such other escrow agent ---------------------- to which the parties may agree) shall notify each of the Company, the Investor and Broker on the Business Day it receives all of the Company Required Items relating to such Closing. If Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree) shall have provided such notice by the Closing and if the other conditions to the Investor's obligation to purchase securities at such Closing as provided hereunder shall have been satisfied or waived, the Investor shall deliver (or cause to be delivered) (x) to the Company, the Purchase Price for the Put Shares to be issued and sold at such Closing, less the amounts contemplated by clause (y) following (1) to Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree), $1,500, (2) to the Investor, the amount of all Blackout Payments (as defined below), together with all accrued interest thereon, then owed and for which full payment shall not have previously been made, and (3) to Broker, an amount equal to 3.50% of the gross Purchase Price to be paid at such Closing. Notwithstanding the foregoing, the Company shall, if possible, deliver the Put Shares to the Investor's account through the Depository Trust Company DWAC system, per written account instructions delivered by the Investor to the Company. If the Company eligible to use such system, the parties hereto shall cooperate with one another and with the Depository Trust Company to facilitate such delivery (if necessary, the parties agree to amend the provisions of this Section in order to facilitate a “Payment Notice”smooth Closing whereby the risk of loss as to delivery of Purchase Price and securities issuable at such Closing are not materially adjusted). The parties hereto understand and agree that Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree) will not less than release the greater of twelve (12) Business Days or seventeen (17) calendar days Company Required Items to the Investor prior to its receipt of written confirmation from the contemplated Subsequent Company that the Company has received the net proceeds from the sale of the Put Shares to have been sold at such Closing; provided, however, if the Company does not confirm such receipt by -------- 5:00 p.m. Eastern Time on the Business Day following the Closing Date, the parties hereby direct Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which notice shall specify the parties may agree) to deliver the Company Required Items to the Investor at such time as Xxxxxxxx Xxxxxxxxx (ior such other escrow agent to which the parties may agree) receives written evidence from the contemplated Subsequent Closing Date and (ii) institution from which the number Purchase Price was delivered on behalf of Series A Shares the Investor that funds equal to the amount required hereunder to be purchased delivered to the Company at such Closing were delivered in accordance with the wire instructions provided by each Investorthe Company for such purpose (a federal wire number for the correct amount and in accordance with the wire instructions provided by the Company for such purpose shall be conclusive evidence of the Company's receipt). Each of the parties hereby agrees jointly and severally to indemnify and hold harmless Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree) and its members, employees, agents and representatives from any and all claims, liabilities, costs or expenses in any way arising from or relating to the performance of its duties hereunder and agrees that Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree) shall not have any liability hereunder other than as arising solely from its willful misconduct in performing its duties hereunder. The parties understand and agree that Xxxxxxxx Xxxxxxxxx (or such other escrow agent to which the parties may agree) may, at any time upon five Business Days prior written notice to the parties, resign from its duties and obligations hereunder without recourse to any party. The Company further understands and agrees that Xxxxxxxx Xxxxxxxxx acts as legal counsel to the Investor in connection with the transactions contemplated hereby and may, from time to time, represent the Investor in other matters, including such matters as may directly or indirectly be adverse to the interests of the Company. The Company consents to such representation and waives any claim that such representation represents a conflict of interest on the part of Xxxxxxxx Xxxxxxxxx. The Investor understands that the Company and Xxxxxxxx Xxxxxxxxx are relying explicitly on the foregoing provision in connection with the Investor entering into this Agreement.

Closings. (a) The Initial Closing shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the Parties. At the Initial Closing, each sale and purchase of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares Notes to be purchased by each InvestorPurchaser shall occur at the offices of Xxxxxxxxx Xxxxxxx, LLP, 00 Xxxx Xxxxxx Xxxxx, Suite 3100, Chicago, Illinois 60601, at 9:00 a.m., Chicago time, (i) with respect to the Series A Notes, EQUITY ONE, INC. NOTE PURCHASE AGREEMENT at a closing on May 11, 2016 or such earlier date designated by the Company in a written notice furnished to you at least 30 days prior to the proposed date of closing (the “First Closing”) and (ii) with respect to the Series B Notes, at a closing on August 11, 2016 or such earlier date designated by the Company in a written notice furnished to you at least 30 days prior to the proposed date of closing (the “Second Closing”, each of the First Closing and the Second Closing being referred to herein as, a “Closing”). At each Closing the Company will deliver to each Purchaser the Notes to be purchased by such Purchaser in the form of a single Note for each series to be so purchased (or such greater number of Notes in denominations of at least $500,000 as such Purchaser may request) dated the date of such Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company to account number 1001622429 at City National Bank of Florida, 00 X Xxxxxxx Xxxxxx, Xxxxx, XX 00000, ABA# 000000000, account name: Equity One, Inc. If at a Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of any of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction or such failure by the Company to tender such Notes.

Closings. (a) The Upon the terms and subject to the conditions of this Agreement, the initial closing (the “Initial Closing Closing”) of the purchase and sale of the Shares shall take place at within one business day of the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or date hereof at such other time, date or place as shall be time that is mutually agreed upon by the Parties. At Company and the Initial Closing, each of the Investors shall purchase that number of Series A Shares Purchaser (the “Initial Series A SharesClosing Date”) and), if applicable, that number pursuant to which the Purchaser shall purchase 2,000,000 Shares for an aggregate Purchase Price of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, $500,000 or SGD$672,961.50 (Rate 1.345923 -27/03/2024 4pm DBS FX). The second closing (the “Initial Purchase PriceSecond Closing”) of the purchase and sale of the Shares shall take place no later than April 2, 2024 at such time that is mutually agreed upon by the Company and the Purchaser (the “Second Closing Date”), pursuant to which the Purchaser shall purchase 6,000,000 Shares for an aggregate Purchase Price of $1,500,000. (b) From time to time up to The third closing (the “Third Closing” and, together with the Initial Closing and including the third (3rd) anniversary of the date of this AgreementSecond Closing, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, of the purchase and sale of the Shares shall take place at only upon the offices mutual agreement of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in Parties no later than two (2) business days following the Payment Notice described in the following sentence or Second Closing Date at such other time, date or place as shall be time that is mutually agreed upon by the Parties. With respect Company and the Purchaser (the “Third Closing Date” and, together with the Initial Closing Date and the Second Closing Date, the “Closing Date”), pursuant to any contemplated Subsequent which the Purchaser shall purchase up to an additional 2,000,000 Shares for an aggregate Purchase Price of up to $500,000. (c) At or before the Closing, the Purchaser shall deliver the Purchase Price by wire transfer in immediately available funds to the Company’s bank account designated by the Company as below: [__________________________________] (d) No later than three (3) business days following each Closing, the Company shall cause its transfer agent to deliver to each Investor the Purchaser a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) share certificate representing the number of Series A Shares to be purchased by each Investorat such Closing or a copy of the book-entry statement evidencing the Purchaser as the holder of such Shares.

Closings. (a) The closing of the purchase and sale of the Securities set forth on Exhibit A (the “Initial Closing Closing”) shall take place at the offices of Weil, Gotshal Xxxxx Xxxx & Xxxxxx Xxxxxxxx LLP, 000 Xxxxxxx Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, XxxxxxxxxxxxxXxx Xxxx, on June 18as soon as possible, 2004but in no event later than three Business Days, after satisfaction (or waiver) of the conditions set forth in Section 8.01, Section 8.02 and Section 8.03, or at such other time, date time or place as shall be agreed upon by Buyer and the PartiesCompany may agree. At the Initial Closing, each of : (i) Buyer shall deliver to the Investors shall purchase that number of Series A Shares (Company the “Initial Series A Shares”) and, if applicable, that number of Warrants amount set forth opposite each such InvestorBuyer’s name on Schedule 2.1Exhibit A in immediately available funds by wire transfer to an account of the Company with a bank in New York City designated by the Company, by notice to Buyer, which notice shall be delivered not later than two Business Days prior to the Initial Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of the Company in such amount); and (ii) the Company shall deliver to Buyer certificates (or, in the case of the Warrant, execute and deliver the Warrant) for the purchase price Securities set forth opposite each such InvestorBuyer’s name on Schedule 2.1, (the “Initial Purchase Price”).Exhibit A. (b) From time Subject to time up to and including the third (3rd) anniversary satisfaction or waiver of the date of this Agreementconditions set forth in Sections 8.04, 8.05 and 8.06, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion closing of the aggregate unsatisfied Subscription Obligations purchase and sale of the Investors Securities set forth on Exhibit B (each, a the “Subsequent Second Closing”). Subsequent Closings, if any, ) shall take place at the offices of Weil, Gotshal Xxxxx Xxxx & Xxxxxx Xxxxxxxx LLP, 000 Xxxxxxx Xxxxxxxxx Xxxxxx, XxxxxxXxx Xxxx, Xxxxxxxxxxxxx Xxx Xxxx at the following time: (x) 365 days after the Initial Closing Date (or, if not a Business Day, on the preceding Business Day); (y) at such earlier date specified (but no earlier than December 23, 2011) as the Company may designate in the Payment Notice described in the following sentence a written notice delivered to Buyer at least 45 days before such designated date; or (z) at such other timetime as Buyer and the Company may agree. At the Second Closing: (i) Buyer shall deliver to the Company for each Common Share or Non-Voting Preferred Share to be issued at such closing an amount equal to the Per Share Price in immediately available funds by wire transfer to an account of the Company with a bank in New York City designated by the Company, date or place as by notice to Buyer, which notice shall be agreed upon delivered not later than two Business Days prior to the Second Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the Parties. With respect to any contemplated Subsequent Closing, order of the Company in such amount); and (ii) the Company shall deliver to Buyer certificates for the Securities set forth opposite each Investor a notice such Buyer’s name on Exhibit B. (a c) Subject to satisfaction or waiver of the conditions set forth in Sections 8.07, 8.08 and 8.09, the closing of the purchase and sale of the Securities set forth on Exhibit C (the “Payment NoticeThird Closing”) shall take place at the offices of Xxxxx Xxxx & Xxxxxxxx LLP, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at the following time: (x) 365 days after the Initial Closing Date (or, if not less a Business Day, on the preceding Business Day); (y) at such earlier date (but no earlier than December 23, 2011) as the greater of twelve Company may designate in a written notice delivered to Buyer at least 45 days before such designated date; or (12z) Business Days or seventeen at such other time as Buyer and the Company may agree. At the Third Closing: (17i) calendar days prior Buyer shall deliver to the contemplated Subsequent Closing DateCompany for each Common Share to be issued at such closing an amount equal to the Per Share Price in immediately available funds by wire transfer to an account of the Company with a bank in New York City designated by the Company, by notice to Buyer, which notice shall specify (i) be delivered not later than two Business Days prior to the contemplated Subsequent Third Closing Date and (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of the Company in such amount); and (ii) the number of Series A Shares Company shall deliver to be purchased by Buyer certificates for the Securities set forth opposite each Investor.such Buyer’s name on Exhibit C.

Closings. Subject to the terms and conditions set forth in this Agreement: (a) On November 16, 2007 (or at such other time as the Company and the Purchasers participating in the Initial Closing may from time to time agree in writing), the Company shall issue and sell to each Purchaser in the Initial Closing, and each such Purchaser shall, severally and not jointly, purchase from the Company, the Shares and the Warrants representing such Purchaser's Investment Amount for the Initial Closing. The Initial Closing shall take place at the offices of WeilSheppard, Gotshal Mullin, Xxxxxxx & Xxxxxx Hampton LLP, 000 Xxxxxxx Xxxxxx00000 Xx Xxxxxx Xxxx, XxxxxxXxxxx 000, XxxxxxxxxxxxxXxx Xxxxx, on June 18, 2004Xxxxxxxxxx 00000-0000, or at such other time, date location or place times as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite Company and such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”)Purchasers may agree. (b) From On the proposed Closing Date (as set forth on the signature pages hereof for such Purchaser next to the label "Proposed Closing Date") selected by the Company and the Purchasers for any Closing other than the Initial Closing (or at such other time as the Company and the Purchasers participating in such Closing may from time to time up to and including the third (3rd) anniversary of the date of this Agreementagree in writing), the Board of Directors may Company shall issue and sell to each Purchaser participating in its sole discretion require such Closing, and each such Purchaser shall, severally and every Investor to not jointly, purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A from the Company, the Shares and the Warrants representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent such Purchaser's Investment Amount for such Closing”). Subsequent Closings, if any, Each Closing shall take place at the offices of WeilSheppard, Gotshal Mullin, Xxxxxxx & Xxxxxx Xxxxxxx LLP, 000 Xxxxxxx Xxxxxx00000 Xx Xxxxxx Xxxx, XxxxxxXxxxx 000, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence Xxx Xxxxx, Xxxxxxxxxx 00000-0000, or at such other time, date location or place times as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice and the Purchasers participating in such Closing may agree. Each such Closing must (a “Payment Notice”i) be for the sale of not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior $100,000 in gross proceeds to the contemplated Subsequent Closing DateCompany, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares occur prior to be purchased by each InvestorDecember 31, 2007.

Closings. (ai) The Initial Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6 and 7, the first Closing (the "FIRST CLOSING") of the purchase and sale of Shares shall take place occur with respect to up to 2,604,000 Shares and Warrants to purchase up to 2,604,000 shares of Common Stock at the offices of WeilXxxxxxx, Gotshal Calamari & Xxxxxx LLPXxxxxxx, 000 Xxxxxxx Xxxx Xxxxxx, XxxxxxXxx Xxxx, XxxxxxxxxxxxxXxx Xxxx, at 10:00 A.M. on June 18November 14, 20041997, or at such other time, later date or place as shall may be mutually agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”)parties. (bii) From time Subject to time up to and including the third satisfaction (3rdor waiver) anniversary of the date of this Agreementconditions set forth in Sections 6 and 7, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all a Closing or a portion of the aggregate unsatisfied Subscription Obligations of the Investors Closings (each, a “Subsequent Closing”)an "INTERIM CLOSING") of the purchase and sale of up to an aggregate of 2,000,000 Shares and Warrants to purchase up to 2,000,000 shares of Common Stock may be held during the period (the "INTERIM PERIOD") from November 15, 1997, through and including November 21, 1997. Subsequent Closings, if any, Such Interim Closing or Interim Closings shall take place occur at the offices of Weil, Gotshal Xxxxxxxxxxx Xxxxx & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx Xxxxxxxx at 10:00 A.M. on the date specified in the Payment Notice described in the following sentence or at such other time, date or place dates during the Interim Period as shall may be mutually agreed upon by the PartiesCompany and the Purchasers in any such Closing. With The Shares that shall be sold and the Warrants that shall be delivered at any Interim Closing shall be deemed to have been purchased and sold in the First Closing. (iii) Subject to the satisfaction (or waiver) of the conditions set forth in Sections 6, 7 and 8, the second Closing (the "SECOND CLOSING") of the purchase and sale of Shares shall occur at the offices of Xxxxxxx, Calamari & Xxxxxxx with respect to any contemplated Subsequent up to 4,500,000 Shares and Warrants to purchase up to 4,500,000 shares of Common Stock within fifteen days following satisfaction or waiver of each of the conditions set forth in Sections 6, 7 and 8. The Company shall give each Purchaser at least fifteen days prior written notice of the date and time of the Second Closing. (iv) Notwithstanding anything to the contrary contained herein, the Company First Closing in no event shall deliver occur later than November 14, 1997, and the Second Closing in no event shall occur later than January 30, 1998. (v) The date of each Closing shall be hereinafter referred to each Investor as a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each Investor"CLOSING DATE."

Closings. (a) The closing (the "Initial Closing") of the sale and issuance of the Purchased Securities pursuant to Section 2.3(a) shall, subject to the satisfaction or waiver of the applicable conditions set forth in Section 6.1(a), take place on the date hereof. (b) The closing (the "Qualified Event Closing"), if any, of the sale of the Purchased Securities pursuant to Section 2.4 shall take place on or before June 25, 2003. (c) The closing (the "Second Closing"), if any, of the sale of the Purchased Securities pursuant to Section 2.6 shall take place on or before the date required by Article III of the Stockholders' Agreement. (d) Each closing (each, a "Drawdown Closing") of (i) the sale of Mandatory Securities which occurs from time to time shall take place on such date as may be agreed to by the Company and the Requisite Purchasers (but in no event later than the applicable Funding Day) and (ii) the sale of Advance Purchase Securities which occurs from time to time shall take place on the respective Advance Purchase Date. (e) Each Closing shall take place at the offices of WeilO'Melveny & Xxxxx LLP at 00 Xxxxxxxxxxx Xxxxx, Gotshal & Xxxxxx LLPXxx Xxxx, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004Xxx Xxxx 00000, or at such other time, date or place as shall be agreed upon to by the Parties. At Company and the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”)Requisite Purchasers. (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each Investor.

Closings. (a) The Initial Closing Subject to the satisfaction of the conditions set forth in Section 7, the closing of the sale to, and purchase by, the Purchasers of the Purchased Securities provided for in Section 2(a) hereof (the "Phase I Closing") --------------- shall take place occur at the offices of Weil, Gotshal Faegre & Xxxxxx LLP, 000 2200 Norwest Center, 00 Xxxxx Xxxxxxx Xxxxxx, XxxxxxXxxxxxxxxxx, XxxxxxxxxxxxxXxxxxxxxx, at the hour of 8:30 A.M., Minneapolis time, on June 18October 13, 2004, 1998 or on such other day or at such other time, date time or place as the Purchasers and the Company shall be agreed mutually agree upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”"Phase I Closing Date").. -------------------- (b) From time Subject to time up to and including the third (3rd) anniversary satisfaction of the date of this Agreementconditions set forth in Section 8, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1closing(s) of Series A Shares representing all or a portion the sale to, and purchase by, the Centre Purchasers of the aggregate unsatisfied Subscription Obligations of Purchased Securities provided for in Section 2(b) hereof (each a "Phase II -------- Closing" and, collectively with the Investors (eachPhase I Closing, sometimes referred to ------- herein as a “Subsequent "Closing”). Subsequent Closings, if any, ") shall take place occur at the offices of Weil, Gotshal Faegre & Xxxxxx LLP, 000 ------- 2200 Norwest Center, 00 Xxxxx Xxxxxxx Xxxxxx, XxxxxxXxxxxxxxxxx, Xxxxxxxxxxxxx Xxxxxxxxx, at the hour of 8:30 a.m., Minneapolis time, on the date specified in that is fifteen (15) Business Days following the Payment Notice described in date of the following sentence written notice(s) triggering such purchase and sale, or on such other day or at such other time, date time or place as the Centre Purchasers and the Company shall mutually agree upon. The date on which a Phase II Closing shall be agreed upon by the Parties. With respect held is referred to any contemplated Subsequent in this Agreement as a "Phase II -------- Closing Date." ------------ (c) At each Closing, (i) the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater Purchasers certificates representing the Series C Preferred Shares and CVRs being purchased by the Purchasers, registered in their respective names as stated in Schedule A hereto, against payment of twelve (12) Business Days or seventeen (17) calendar days prior the amount of the purchase price therefor, payable in accordance with Section 2 hereof by wire transfer of immediately available funds to an account designated in writing by the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date Company and (ii) the number of Series A Shares to be purchased by each Investorparties shall make the other deliveries provided in Section 16 or 17 hereof, as applicable.

Closings. (a) 2.2.1 The Initial first Closing of the purchase and sale of Series B Preferred Shares shall take place at the offices of WeilSxxxxxxxxx, Gotshal Xxxxxxx & Xxxxxx LLPSxxxxxx, 000 Xxxxxxx P.C., 2000 Xxxxxxxx Xxxxxx, XxxxxxXxxxx 0000, XxxxxxxxxxxxxXxxxxxxxxx, X.X. 00000, at 1:00 p.m. on June 18October 16, 20042001, or at such other timelocation, date or place and time as shall may be agreed upon by between the Parties. At Purchasers and the Initial Closing, each of the Investors shall purchase that number of Series A Shares Company (such closing being called the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite First Closing” and such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (date and time being called the “Initial Purchase PriceFirst Closing Date”). (b) From time to time up to and including the third (3rd) anniversary 2.2.2 If less than all of the date Authorized Number of this AgreementSeries B Preferred Shares are sold at the First Closing, the Board of Directors Company may in its sole discretion require each and every Investor discretion, at one or more additional closings to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of WeilSxxxxxxxxx, Gotshal Xxxxxxx & Xxxxxx LLPSxxxxxx, 000 Xxxxxxx 2000 Xxxxxxxx Xxxxxx, XxxxxxXxxxx 0000, Xxxxxxxxxxxxx Xxxxxxxxxx, D.C. on or before December 15, 2001 (each such closing, together with the First Closing, being called a “Closing” and such date specified in the Payment Notice described in the following sentence or at such other and time, date or place as shall be agreed upon by together with the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent First Closing Date, which notice shall specify being called a “Closing Date”) issue and sell any or all of the Authorized Number of Series B Preferred Shares not purchased at the First Closing to those Purchasers who elect to purchase additional Series B Preferred Shares and/or one or more additional purchasers who elect to become parties to this Agreement, by (i) the contemplated Subsequent Closing Date executing a counterpart hereof and causing Schedule I to be amended appropriately, (ii) executing a counterpart signature page to the number of Series A Shares Stockholders’ Agreement and (iii) executing a counterpart signature page to the Registration Rights Agreement, whereupon (a) such additional purchaser shall become a party to this Agreement, the Stockholders’ Agreement and the Registration Rights Agreement and (b) all references to “Purchaser” and “Purchasers” herein shall be purchased by each Investordeemed to include such additional purchaser.

Closings. (a) The purchase and sale of the Initial Closing Shares pursuant to the terms of Section 2.1 shall take place at the offices of WeilProskauer Rose LLP in New York, Gotshal & Xxxxxx LLPNew York, 000 Xxxxxxx Xxxxxxat 10:00 a.m. on February 6, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 20042002, or at such other time, date or time and place as shall be agreed the Company and the Purchasers mutually agree upon by in writing (which time and place are designated as the Parties. At the Initial "First Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”"). (b) From time The purchase and sale of Additional Shares pursuant to time up to the terms and including the third (3rd) anniversary conditions of the date of Sections 2.2 and this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, Section 2.3 shall take place at the offices of WeilProskauer Rose LLP in New York, Gotshal & Xxxxxx LLPNew York at 10:00 a.m. on February 28, 000 Xxxxxxx Xxxxxx2002, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date time as determined pursuant to Section 2.3(d) or at such other time and place as the Company and the Purchasers mutually agree upon in writing (which time and place are designated as the "Second Closing"). (c) In the event that Average Market Price is less than $15.00 (the "Floor Price"), then, except as specifically provided in Section 2.3(d) below, the Second Closing shall not occur, and no Purchaser shall be agreed upon by the Parties. With respect obligated to any contemplated Subsequent Closing, purchase and the Company shall deliver not be obligated to each Investor a notice sell any Additional Shares. (a “Payment Notice”d) not Notwithstanding anything to the contrary in Section 2.3(c) above, in the event that the Average Market Price is less than the greater Floor Price, then each Purchaser shall have the right (but not the obligation), with respect to itself only, to require a Second Closing to purchase its respective Second Closing Warrant and Additional Shares (or any portion of twelve Additional Shares) for the Second Closing Purchase Price applicable to such Purchaser (12) Business Days such Second Closing Purchase Price proportionately reduced to the extent such Purchaser purchases less than all of its respective Additional Shares). Such right shall be exercised by delivery of written notice to such effect by such Purchaser to the Company delivered on or seventeen (17) calendar days before 5:30 P.M. on March 4, 2002. Upon such delivery of written notice to the Company, the date of the Second Closing for all purposes herein shall be the third Trading Day following delivery of such notice. Any Purchaser delivering such notice may revoke such notice at any time prior to the contemplated Subsequent Closing Date, which notice shall specify (i) consummation of the contemplated Subsequent Closing Date and (ii) the number of Series A Shares to be purchased by each InvestorSecond Closing.

Closings. (a) At the initial closing to be held on March 30, 2006 (or such other date as may be agreed upon among the Investors and Xxxxxxxx) (the “Initial Closing”), (i) Xxxxxxxx shall issue to the Investors the Redemption Series E Shares in exchange for the Existing Securities and (ii) Xxxxxxxx shall sell, and the Investors shall purchase, the number of Purchased Series E Shares set forth on Schedule B under the heading “Initial Closing.” The Initial Closing shall take place at the offices of WeilXxxxxxxxx Traurig, Gotshal & Xxxxxx LLP, 000 Xxxxxxx XxxxxxOne International Place, XxxxxxBoston, Xxxxxxxxxxxxx, on June 18, 2004, Massachusetts or at such other time, date or place location as shall may be agreed upon by the Parties. At the Initial Closing, each of among the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”)and Xxxxxxxx. (b) From time Subject to time up to the terms and including the third (3rd) anniversary of the date conditions of this Agreement, the Board of Directors (i) at a second closing to be held on April 13, 2006 (or such other date as may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of be agreed upon among the Investors and Xxxxxxxx) (each, a the “Subsequent Second Closing”). Subsequent , Xxxxxxxx shall sell, and the Investors shall purchase, the number of Purchased Series E Shares set forth on Schedule B under the heading “Second Closing,” (ii) at a third closing to be held on April 27, 2006 (or such other date as may be agreed upon among the Investors and Xxxxxxxx) (the “Third Closing”), Xxxxxxxx shall sell, and the Investors shall purchase, the number of Purchased Series E Shares set forth on Schedule B under the heading “Third Closing,” (iv) at a fourth closing to be held on May 11, 2006 (or such other date as may be agreed upon among the Investors and Xxxxxxxx) (the “Fourth Closing”), Xxxxxxxx shall sell, and the Investors shall purchase, the number of Purchased Series E Shares set forth on Schedule B under the heading “Fourth Closing,” (v) at a fifth closing to be held on May 25, 2006 (or such other date as may be agreed upon among the Investors and Xxxxxxxx) (the “Fifth Closing”), Xxxxxxxx shall sell, and the Investors shall purchase, the number of Purchased Series E Shares set forth on Schedule B under the heading “Fifth Closing,” and (vi) at a sixth closing to be held on June 8, 2006 (or such other date as may be agreed upon among the Investors and Xxxxxxxx) (the “Sixth Closing” and, together with the Second Closing, the Third Closing, the Fourth Closing and the Fifth Closing, the “Additional Closings”), if anyXxxxxxxx shall sell, and the Investors shall purchase, the number of Purchased Series E Shares set forth on Schedule B under the heading “Sixth Closing.” Such Additional Closings shall take place at the offices of WeilXxxxxxxxx Traurig, Gotshal & Xxxxxx LLP, 000 Xxxxxxx XxxxxxOne International Place, XxxxxxBoston, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence Massachusetts or at such other time, date or place location as shall may be agreed upon among the Investors and Xxxxxxxx. The Initial Closing and the Additional Closings are sometimes collectively referred to herein as the “Closings,” and each individually as a “Closing.” Notwithstanding the foregoing, the number of Purchased Series E Shares to be purchased by Investors at the Parties. With respect Sixth Closing may be reduced to the extent such Investors do not have sufficient proceeds to purchase such shares due to the inability of such Investors to liquidate any contemplated Subsequent unredeemed shares of Xxxxxxxx’x Series D Convertible Preferred Stock held by them, including, without limitation, as a result of there not being enough shares of Xxxxxxxx’x Common Stock available to process conversions of such Series D Convertible Preferred Stock. (c) At the Initial Closing, Xxxxxxxx shall issue and deliver to each Investor (i) a certificate for the Company Redemption Series E Shares being acquired by such Investor (as set forth on Schedule A) in exchange for such Investor’s Existing Securities and (ii) a certificate for the Purchased Series E Shares being purchased by such Investor at the Initial Closing (as set forth on Schedule B), against payment by such Investor to Xxxxxxxx of the aggregate purchase price therefor in the form of (A) a certified or bank check payable to the order of Xxxxxxxx, (B) a wire transfer to a bank account designated by Xxxxxxxx, or (C) any combination of (A) and (B). (d) At each Additional Closing, Xxxxxxxx shall issue and deliver to each Investor a notice certificate for the Purchased Series E Shares being purchased by such Investor at such Additional Closing (as set forth on Schedule B), against payment by such Investor to Xxxxxxxx of the aggregate purchase price therefor in the form of (A) a “Payment Notice”) not less than the greater of twelve (12) Business Days certified or seventeen (17) calendar days prior bank check payable to the contemplated Subsequent Closing Dateorder of Xxxxxxxx, which notice shall specify (iB) the contemplated Subsequent Closing Date a wire transfer to a bank account designated by Xxxxxxxx, or (C) any combination of (A) and (ii) the number of Series A Shares to be purchased by each InvestorB).

Closings. The execution and delivery of this Agreement and the sale and purchase of the Series D Notes (athe “First Closing”) The Initial shall occur at 11:00 a.m. New York, New York time on July 6, 2016 (the “First Closing shall take place Date”) at the offices of Weil, Gotshal & Xxxxxx Xxxxxx LLP, 000 Xxxxxxx Xxxxx Xxxxxx, Xxxxxx00xx Xxxxx, XxxxxxxxxxxxxXxx Xxxx, Xxx Xxxx 00000 or on June 18, 2004, or at such other timeBusiness Day thereafter on or prior to July 8th, date or place 2016 as shall may be agreed upon by the PartiesCompany and the Purchasers. At the Initial Closing, each The sale and purchase of the Investors shall purchase that number of Series A Shares E Notes (the “Initial Series A Shares”) Second Closing” and, if applicabletogether with the First Closing, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings) shall occur at 11:00 a.m. New York, if anyNew York time on September 15, shall take place 2016 (or such other date as provided in the immediately succeeding sentence, the “Second Closing Date” and, together with the First Closing Date, each, a “Closing Date”) at the offices of Weil, Gotshal & Xxxxxx Xxxxxx LLP, 000 Xxxxxxx Xxxxx Xxxxxx, Xxxxxx00xx Xxxxx, Xxxxxxxxxxxxx on Xxx Xxxx, Xxx Xxxx 00000. The date or time of the date specified in the Payment Notice described in the following sentence or at Second Closing may be changed to such other time, date or place Business Day as shall may be agreed upon by the PartiesCompany and the Purchasers purchasing Notes at such Closing. With respect to any contemplated Subsequent At each Closing, the Company shall will deliver to each Investor a notice (a “Payment Notice”) not less than Purchaser the greater Notes of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A Shares series to be purchased by each Investorsuch Purchaser at such Closing in the form of a single Note of such series (or such greater number of Notes of such series in denominations of at least $100,000 as such Purchaser may request) dated the date of such Closing and registered in such Purchaser’s name (or in the name of its nominee), against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer to the account of the Company set forth in the funding instructions delivered by the Company in accordance with Section 4.10. If at a Closing the Company shall fail to tender such Notes to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of any of the conditions specified in Section 4 not having been fulfilled to such Purchaser’s satisfaction or such failure by the Company to tender such Notes.

Closings. (a) The Initial Subject to the terms and conditions set forth in this Agreement, at each Closing the Company shall issue and sell to each Purchaser, and each Purchaser shall, severally and not jointly, purchase from the Company, the Preferred Stock and the Warrants representing such Purchaser’s Subscription Amount, in accordance with the installments as set forth in the Closing Schedule of Section 2.1(b) below (the “Closing Schedule”). Each Closing shall take place at the offices of WeilLucosky Bxxxxxxx LLP (“LB”), Gotshal & 100 Xxxx Xxxxxx LLPXxxxx, 000 Xxxxxxx XxxxxxXxxxxxxxxx, Xxxxxx, Xxxxxxxxxxxxx, Xxx Xxxxxx 000000 on June 18, 2004, the applicable Closing Date or at such other time, date location or place time as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”)parties may agree. (b) From time Subject to time up to Sections 2.2(a), (c) and including (d) of this Agreement, as applicable, the third (3rd) anniversary closing of the issuance and purchase of the Shares and the Warrants shall consist of three (3) separate closings (provided that the Second Closing and Third Closing may be combined with the mutual approval of the Company and the Purchasers) as set out in the below closing schedule (the “Closing Schedule”)(each a “Closing” and collectively the “Closings”), on a date specified by the parties herein upon the fulfillment of the conditions as set forth in the Closing Schedule and in Sections 2.2(a), (c) and (d) of this Agreement, as applicable. Initial Closing $ 550,000 3,300,000 Initial Closing Date $500,000 (“Initial Closing Amount”) Second Closing $ 275,000 The earlier of (a) the date mutually approved by the Company and the Purchasers; and (b) three (3) Business Days after the Stockholder Approval and Effectiveness Date $250,000 (“Second Closing Amount”) Third Closing $ 825,000 The Stockholder Approval and Effectiveness Date $750,000 (“Third Closing Amount”) Total $ 1,650,000 $ 1,500,000 (c) Subject to all of the terms and conditions of this Agreement, the Board of Directors may in its sole discretion require Company grants to each and every Investor Purchaser the option (the “Option”) to purchase its pro rata percentage an additional $1,100,000 (based on the Stated Value as reflected on Schedule 2.1defined in the Certificate of Designation) of Series A B Preferred Stock (the “Option Shares”). The purchase price to be paid for the Option Shares representing all or a shall be $1,000,000 (the “Option Price”), and the purchase price payable by each Purchaser who is exercising the Option will be the pro rata portion of the aggregate unsatisfied Subscription Obligations Option Price, based on a fraction, the numerator of which shall be the Investors number of Option Shares such Purchaser elects to purchase pursuant to its Option and the denominator of which shall be the number of Shares purchased by such Purchaser at the Initial Closing. Each Purchaser may exercise the Option in whole or in part, on one occasion following the Third Closing, at any time on or before the date that is six (each6) months following the Third Closing Date, a upon written notice, which may be sent via e-mail (an “Subsequent ClosingOption Notice”)) to the Company no later than 5:00 p.m., New York City time. Subsequent Closings, if any, The closing with respect to such Option Shares shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater earlier of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) two (2) Trading Days after the contemplated Subsequent Closing Date delivery to the Company of the Option Notice and (ii) the number of Series A Trading Days comprising the Standard Settlement Period after the delivery to the Company of the Option Notice (each, an “Option Closing Date” and such closing, an “Option Closing”) setting forth the aggregate number of Option Shares to be purchased by and the time and date for such Purchase. Upon exercise of the Option, the Company will become obligated to convey to such Purchaser, and such Purchaser will become obligated to purchase, in each Investorcase subject to the terms and conditions set forth herein, the number of Option Shares specified in the Option Notice. For purposes hereof, “Standard Settlement Period” means the standard settlement period, expressed in a number of Trading Days, on the Company’s primary Trading Market with respect to the Common Shares as in effect on the date of delivery of the Option Notice.

Closings. (a) The issuance and purchase of the Initial Closing Shares shall take place at the closing (the "FIRST CLOSING") to be held at the offices of WeilHutcxxxxx & Xasox XXXC, Gotshal & Xxxxxx LLP4011 Xxxxxxxxx Xxxx., 000 Xxxxxxx XxxxxxXxxxx 000, XxxxxxXxxxxxx, XxxxxxxxxxxxxXX 00000 xx 10:00 a.m., Eastern Standard Time, on June 18or before March 24, 20041998, or at such other time, date or time and place as shall be agreed upon by the PartiesCompany and the Purchasers may agree in writing (the "FIRST CLOSING DATE"). At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent First Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior Purchasers the Initial Shares against delivery by the Purchasers to the contemplated Subsequent Closing DateCompany of the purchase price therefor, which notice payable by wire transfer of immediately available funds to an account or accounts designated in writing by the Company. (b) The issuance and purchase of the Additional Shares shall specify take place at the closing (ithe "SECOND CLOSING") to be held at the contemplated Subsequent offices of Hutcxxxxx & Xasox XXXC, 4011 Xxxxxxxxx Xxxx., Xxxxx 000, Xxxxxxx, XX 00000 xx 10:00 a.m., Eastern Standard Time, on June 23, 1998, or at such later time and place as the Company may request (the "SECOND CLOSING DATE"); provided, however, that in no event shall the Second Closing Date be later than April 1, 1999. At the Second Closing, the Company shall deliver to the Purchasers the Additional Shares against delivery by the Purchasers to the Company of the purchase price therefor, payable by wire transfer of immediately available funds to an account or accounts designated in writing by the Company. (c) The issuance and (iipurchase of the Default Shares shall take place as set forth in Section 2.3(c) the number of Series A Shares to be purchased by each Investorhereof.

Closings. Subject to the satisfaction (or waiver) of the conditions set forth in Article VI and Article VII below (other than the conditions that by their nature are to be satisfied at the applicable Closing, but subject to the satisfaction or waiver of such conditions), the purchase, sale and issuance of the Notes shall take place at three closings (each of which is referred to in this Agreement as a “Closing”): (a) The Initial initial Closing shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A SharesClosing”) and), if applicablepursuant to which the Company shall sell and issue, that number and each Investor shall purchase, the principal amount of Warrants Notes as is set forth opposite such Investor’s name in column (4) on the Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if anyInvestors, shall take place at the offices of WeilGrxxxxxxx Xrxxxxx, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx1700 Xxxxxx Xxxxxxxxx, XxxxxxXxxxx 0000, Xxxxxxxxxxxxx XxXxxx, Xxxxxxxx 00000, at 10:00 a.m. local time on the date specified in of this Agreement; (b) A second closing (the Payment Notice described in the following sentence or at such other time“Second Closing”), date or place as shall be agreed upon by the Parties. With respect pursuant to any contemplated Subsequent Closing, which the Company shall deliver to sell and issue, and each Investor shall purchase, the principal amount of Notes (in the aggregate principal amount of $1,500,000) as is set forth opposite such Investor’s name in column (5) on the Schedule of Investors, shall take place on September 7, 2012 at the offices of Grxxxxxxx Xrxxxxx, LLP, 1700 Xxxxxx Xxxxxxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 22102, at 10:00 a.m. local time; provided, however, an Investor shall have the right not to purchase a notice (a “Payment Notice”) not less than Note at the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Second Closing Date, which notice shall specify if (i) the contemplated Subsequent total projected revenue which will be recognized from January 1, 2012 through August 31, 2012 plus all purchase orders and contracts existing on August 31, 2012 for anticipated product shipping through December 31, 2012 is less than $7,500,000, (ii) a second production line in the contracted Waco, Texas facility is not available to produce product as of the Second Closing Date Date, (iii) an order for at least 2,000 rail ties has not been received between the date of this Agreement and August 31, 2012 from a new or international customer and (iv) the Company’s compensation committee has not approved revised compensation arrangements for senior management; (c) A third closing (the “Third Closing”), pursuant to which the Company shall sell and issue, and each Investor shall purchase, the principal amount of Notes (in the aggregate principal amount of $5,000,000 less the principal amount of Notes purchased at the Second Closing) as is set forth opposite such Investor’s name in column (6) on the Schedule of Investors, shall take place on December 3, 2012 at the offices of Grxxxxxxx Xrxxxxx, LLP, 1700 Xxxxxx Xxxxxxxxx, Xxxxx 0000, XxXxxx, Xxxxxxxx 00000, at 10:00 a.m. local time; provided, however, an Investor shall have the right not to purchase a Note at the Third Closing if (i) the total projected revenue which will be recognized from January 1, 2012 through November 30, 2012 plus all purchase orders and contracts existing on November 30, 2012 for anticipated product shipping through December 31, 2012 is less than $10,000,000, (ii) the number gross profit margin for 2012 is not projected at a percentage of Series A Shares at least 12%, (iii) the Company’s Board of Directors, including at least one of the directors appointed pursuant to Section 5.4, has not approved the 2013 Operating Plan and Budget and (iv) the Company’s compensation committee has not approved revised compensation arrangements for senior management consistent with the recommendations of the Investors; and (d) The purchase price for each Note shall be purchased by each Investorequal to the principal amount of such Note on the Schedule of Investors (the “Purchase Price”).

Closings. (a) The Initial Closing shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the Parties. At the Initial Closing, each sale and purchase of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A MRP Shares to be purchased by each InvestorPurchaser shall occur at the offices of Xxxxxxx and Xxxxxx LLP, 000 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000‑4080, at 10:00 a.m., Chicago time, at two closings (each a “Closing”), the first of which will occur on November 15, 2011 (the “First Closing”) and the second of which will occur after November 15, 2011 and no later than December 15, 2011 on such Business Day designated by the Company (upon at least 10 days written notice to the Purchasers) (the “Second Closing”). At each Closing the Company will deliver to each Purchaser the MRP Shares to be purchased by such Purchaser at such Closing (as specified opposite such Purchaser’s name (or the name of its nominee) in Schedule A) in book‑entry form, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company for credit to account number – 821637949, at U.S. Bank, N.A., 0000 X. Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, ABA # 000000000, Account of Custody Trust Cash US Bank, Attention: Xxxxx Xxxxxxx, for further credit to account # 19-9252. If at any Closing the Company shall fail to tender such MRP Shares to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.

Closings. The purchase, sale and issuance of the Shares shall take place at two closings (each of which is referred to in this Agreement as a “Closing” and the date of each is referred to in this Agreement as a “Closing Date”). (a) The initial Closing (the “Initial Closing”) shall be for a total of 949,960 Shares and a total Purchase Price of One Million Eight Hundred Ninety Nine Thousand Nine Hundred Twenty Dollars ($1,899,920.00) (the “Initial Closing Purchase Proceeds”), with each Buyer purchasing from the Company the number of Shares set forth in the column designated “Initial Closing — Number of Shares” opposite such Buyer’s name on the Schedule of Buyers. The Initial Closing shall take place at the offices of WeilXxxxxx Xxxxxxxx & Markiles, Gotshal & Xxxxxx LLP, 000 00000 Xxxxxxx XxxxxxXxxxxxxxx, Xxxxxx00xx Xxxxx, XxxxxxxxxxxxxXxxxxxx Xxxx, on June 18, 2004California 91403, or at such other timelocation as the parties shall mutually agree, date no later than the second business day following the satisfaction or place as shall waiver of the conditions provided in Articles VIII and IX of this Agreement (other than conditions that, by their terms, are intended to be agreed upon by the Parties. At satisfied at the Initial Closing, each but subject to the satisfaction or waiver of the Investors shall purchase that number of Series A Shares those conditions) (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase PriceClosing Date”), but in no event later than the Outside Closing Date. (b) From time to time up to The second Closing (the “Second Closing”) shall be for a total of 4,222,290 Shares and including a total Purchase Price of Eight Million Four Hundred Forty Four Thousand Five Hundred Eighty Dollars ($8,444,580.00) (the third (3rd) anniversary “Second Closing Purchase Proceeds”), with each Buyer purchasing from the Company the number of Shares set forth in the column designated “Second Closing — Number of Shares” opposite such Buyer’s name on the Schedule of Buyers. The Second Closing shall take place at the offices of Xxxxxx Xxxxxxxx & Markiles, LLP, 00000 Xxxxxxx Xxxxxxxxx, 00xx Xxxxx, Xxxxxxx Xxxx, California 91403, or such other location as the parties shall mutually agree, no later than the second business day following the satisfaction or waiver of the date conditions provided in Articles VIII and IX of this Agreement (other than conditions that, by their terms, are intended to be satisfied at the Second Closing, but subject to the satisfaction or waiver of those conditions) (“Second Closing Date”), but in no event later than the Outside Closing Date. (c) If less than all of the Shares are sold and issued at the Initial Closing and Second Closing, then, subject to the terms and conditions of this Agreement, the Board of Directors Company may in its sole discretion require each sell and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all issue at one or a portion of the aggregate unsatisfied Subscription Obligations of the Investors more subsequent closings (each, a “Subsequent Closing”), to one or more Buyers or new purchasers (each, an “Additional Buyer”) approved by the Company’s Board of Directors, the number of Shares agreed to by the Company and such Buyer or Additional Buyer; provided, that (a) such subsequent sale is consummated prior to the Outside Closing Date, (b) each Additional Buyer shall become a party to this Agreement and the other Transaction Documents by executing and delivering a counterpart signature page to each of the Transaction Documents and (c) the aggregate number of Shares sold pursuant to this Agreement does not exceed 6,000,000. Any such sale and issuance in a Subsequent Closings, if any, Closing shall be on the same terms and conditions as those contained herein. Each Subsequent Closing shall take place at the offices of Weilsuch date, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or time and place as shall be agreed upon approved by the PartiesCompany and the Placement Agent each in their sole discretion. With respect The Schedule of Buyers attached to any contemplated Subsequent Closing, the Company this Agreement shall deliver be updated to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) reflect the number of Series A Shares to be purchased by at each Investorsuch Subsequent Closing and the Buyer or Additional Buyer purchasing such Shares.

Closings. (a) The Initial Closing closing of each Vessel Delivery or Chartered Company Sale (each a "Closing") shall take place (a) in the case of a Vessel Delivery, at the offices time and place specified in the applicable MOA, subject to the satisfaction or waiver of Weilthe conditions set forth in Section 6.9(b)(ii), Gotshal & Xxxxxx LLPArticle 7, 000 Xxxxxxx Xxxxxxand Article 8 (other than those conditions that will be satisfied at the applicable Closing, Xxxxxxbut subject to the satisfaction or waiver of such conditions at such Closing), Xxxxxxxxxxxxx(b) in the case of the Chartered Company Sale of the Joint Venture Interests, on June 18October 31, 20042014, subject to the satisfaction or waiver of the conditions set forth in Section 6.9(b)(ii), Article 7, and Article 8 (other than those conditions that will be satisfied at the applicable Closing, but subject to the satisfaction or waiver of such conditions at such Closing), or at such other timeplace, date or place as shall be agreed upon by the Parties. At the Initial Closing, each of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other timetime or on such other date as the Buyer and the Seller may mutually agree in writing, date or place as shall be agreed upon by and (c) in the Parties. With respect to case of a Chartered Company Sale involving the sale of any contemplated Subsequent ClosingChartered SPV Interests, the Company Closing shall deliver to each Investor a notice (a “Payment Notice”) not less than take place until the greater earlier of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Outside Date and (ii) the number date on which all Vessel Deliveries have been either (x) consummated pursuant to this Agreement and the applicable MOAs or (y) terminated pursuant to Section 10.1, subject to the satisfaction or waiver of Series A Shares the conditions set forth in Section 6.9(b)(ii), Article 7, and Article 8 (other than these conditions that will be satisfied at the applicable Closing, but subject to the satisfaction or waiver of such conditions at such Closing); provided that, in the case of (b) and (c) above, the parties shall coordinate and cooperate fully with the other party to have such sale occur during a ballast leg of the applicable Chartered Vessel or in port, cargo free, at a time and place of delivery specified by Seller; provided Seller compensates Buyer at Closing for any such delay beyond October 31, 2014, in the case of the Joint Venture Interests, and beyond December 31, 2014, in the case of Chartered SPV Interests, and Buyer compensates Seller at Closing for any such period prior to October 31, 2014, in the case of the Joint Venture Interests, and December 31, 2014, in the case of Chartered SPV Interests, in an amount equal to (I) the gross revenues earned by the Chartered Vessel from the voyage allocable to each day prior to (in the event Buyer is compensating) or after (in the event Seller is compensating) October 31, 2014 or December 31, 2014, as applicable, if any, less (II) the Chartered Vessel operating expenses so allocable to each such day of early delivery or delay, as applicable. The date upon which a Closing occurs is referred to herein as a "Closing Date". Each of the parties hereto acknowledges and agrees to treat any and all compensation pursuant to the previous proviso as an adjustment to the consideration received hereunder by Seller. Unless the Buyer and Seller otherwise mutually agree in writing, each Closing shall take place on a Business Day and a time during normal banking hours in New York, NY, but shall be deemed to have occurred as of 12:00:01 a.m. local time in New York, NY on the Closing Date. (b) In specifying the time and place of delivery in the MOA for each of the Vessels and for the time of the Closing of the sale and purchase of the Chartered Securities of each Chartered Company, the parties shall coordinate and cooperate fully with the other party hereto in exchanging such information and providing such assistance as the other party hereto may reasonably request in connection with promptly seeking to complete the Vessel Deliveries and Chartered Company Sales. Further, the parties agree to act commercially and reasonably and to coordinate and cooperate fully with the other party, after taking into account port of lading, port of discharge, any applicable charter, cost of anchorage, cost of bunkers, lubricating and hydraulic oils and greases, nearest port of convenience and any other reasonable cost or operational consideration, in specifying the time and place of delivery to be purchased specified in the MOA for each Vessel. The parties have agreed upon the initial proposed general delivery schedule attached hereto as Exhibit 3 (the "Delivery Schedule") setting forth expected times and places where each of the Vessels and Chartered Vessels are to be delivered hereunder. As frequently as is practical between the date hereof and the Final Closing Date, the parties will, acting in good faith as provided herein, agree upon updated versions of Exhibit 3 reflecting more specific dates and delivery port locations. When specific delivery details for a particular Vessel are set by Seller in substantial accordance with the most recently agreed Delivery Schedule, the parties shall cause the relevant Seller SPV and Buyer SPV to execute and deliver an MOA reflecting such delivery terms and otherwise in the form contemplated hereby. If the Buyer SPV does not take delivery of the Vessel within the period or on the date specified in clause 5 of such MOA (when the Seller SPV is prepared to deliver it in compliance with the requirements of the MOA and absent any force majeure event preventing performance by the Buyer SPV), then the Buyer shall pay, for each Investorday of delay in taking delivery, the following penalty amount in cash (for Handymax Vessels- $6,000 per day, for Panamax Vessels- $7,000 per day, for Kamsarmax Vessels- $8,000 per day, and for Capesize Vessels- $13,000 per day), with such penalty continuing for up to ten (10) days. If Buyer SPV takes delivery on or before the last day of such ten (10)-day period in accordance with the terms of the MOA, such penalty amounts shall constitute liquidated damages. From and after such ten (10)-day period, in addition to any remedies at law or in equity, including, without limitation, any rights under Section 11.15, the Seller SPV shall have the right to cancel the MOA and seek damages for its losses, including incidental, consequential, special or indirect damages (but excluding punitive damages), including loss of future revenue or income, loss of business reputation or opportunity, or diminution of value, caused thereby in accordance with the provisions of the MOA and applicable Law. For the avoidance of doubt, unless the Seller SPV shall have exercised the right to cancel the MOA, the applicable Closing shall occur at the end of such ten (10)-day period in accordance with the terms of the MOA, notwithstanding the fact that Buyer shall have paid any penalty. Seller shall cause the Seller SPVs to deliver Notices of Readiness under the MOA with respect to no more than three (3) Vessel Deliveries and/or Chartered Company Sales per week (unless Buyer, in its sole discretion, agrees in writing to a greater number in any week). (c) Seller shall, and shall cause the Seller SPVs and the Chartered Seller SPVs and its and their respective officers, employees, advisers and other representatives to, use its commercially reasonable efforts to provide to Buyer and Buyer Borrower, at Buyer's sole cost and expense, all cooperation that is reasonably requested by Buyer or Buyer Borrower in connection with the Buyer Credit Agreement, including cooperating in satisfying the conditions precedent set forth in the Buyer Credit Agreement to the extent the satisfaction of any such conditions requires the cooperation of the Seller, such Seller SPV or such Chartered Seller SPV.

Closings. (a) The Initial Closing shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx, on June 18, 2004, or at such other time, date or place as shall be agreed upon by the Parties. At the Initial Closing, each sale and purchase of the Investors shall purchase that number of Series A Shares (the “Initial Series A Shares”) and, if applicable, that number of Warrants set forth opposite such Investor’s name on Schedule 2.1, for the purchase price set forth opposite such Investor’s name on Schedule 2.1, (the “Initial Purchase Price”). (b) From time to time up to and including the third (3rd) anniversary of the date of this Agreement, the Board of Directors may in its sole discretion require each and every Investor to purchase its pro rata percentage (as reflected on Schedule 2.1) of Series A Shares representing all or a portion of the aggregate unsatisfied Subscription Obligations of the Investors (each, a “Subsequent Closing”). Subsequent Closings, if any, shall take place at the offices of Weil, Gotshal & Xxxxxx LLP, 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx on the date specified in the Payment Notice described in the following sentence or at such other time, date or place as shall be agreed upon by the Parties. With respect to any contemplated Subsequent Closing, the Company shall deliver to each Investor a notice (a “Payment Notice”) not less than the greater of twelve (12) Business Days or seventeen (17) calendar days prior to the contemplated Subsequent Closing Date, which notice shall specify (i) the contemplated Subsequent Closing Date and (ii) the number of Series A MRP Shares to be purchased by each InvestorPurchaser shall occur at the offices of Cxxxxxx and Cxxxxx LLP, 100 Xxxx Xxxxxx Xxxxxx, Xxxxxxx, Xxxxxxxx 00000-0000, at 10:00 a.m., Chicago time, at two closings (each a “Closing”), the first of which will occur on October 7, 2010 (the “First Closing”) and the second of which will occur after October 7, 2010 and no later than December 15, 2010 on such Business Day designated by the Company (upon at least 10 days written notice to the Purchasers) (the “Second Closing”). At each Closing the Company will deliver to each Purchaser the MRP Shares of the series to be purchased by such Purchaser at such Closing (as specified opposite such Purchaser’s name (or the name of its nominee) in Schedule A) in book-entry form, against delivery by such Purchaser to the Company or its order of immediately available funds in the amount of the purchase price therefor by wire transfer of immediately available funds for the account of the Company for credit to account number – 821637949, at U.S. Bank, N.A., 1000 X. Xxxxx Xxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxx 00000, ABA # 000000000, Account of Custody Trust Cash US Bank, Attention: Dxxxx Xxxxxxx, for further credit to account # 19-9247. If at any Closing the Company shall fail to tender such MRP Shares to any Purchaser as provided above in this Section 3, or any of the conditions specified in Section 4 shall not have been fulfilled to such Purchaser’s satisfaction, such Purchaser shall, at its election, be relieved of all further obligations under this Agreement, without thereby waiving any rights such Purchaser may have by reason of such failure or such nonfulfillment.