Common use of Delivery of the Shares and Warrants at Closing Clause in Contracts

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”), or such later date as the conditions to closing are met or waived, or such other date and time as the Company and the Investors mutually agree. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price to the Issuer, by wire transfer of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Shares and Warrants, and deliver to each Investor their respective certificates for their Shares and their Warrants duly registered in the name of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each such certificate and Warrant shall be registered in the name of the Investors or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1, in the name of a nominee designated by the Investors. 3.2 The Company’s obligation to issue the Shares and the Warrants to the Investors shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company of the purchase price for the Shares and Warrants being purchased hereunder as set forth on Exhibit A hereto (the “Purchase Price”); and (b) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each Investor’s obligation to purchase the Shares and the Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading in the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing Date); (b) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by the Company in Section 4 below as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions set forth in Section 3.2(a), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”)) on November 8, or such later date as 2004, at the conditions to closing are met or waived, or such other date and time as offices of the Company and the Investors mutually agreeCompany’s counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor a Warrant representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Warrant Shares and Warrantsone or more stock certificates representing the number of Shares, and deliver to in each Investor their respective certificates for their Shares and their Warrants duly registered case as is set forth in the name Section 3 of the applicable Investor(s); Stock and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Warrant Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the signature page of the Stock Certificate Questionnaire attached hereto as Exhibit A-1and Warrant Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants the Warrant being purchased hereunder as set forth on Exhibit A hereto in Section 3 of the Stock and Warrant Purchase Agreement; (b) completion of the “Purchase Price”)purchases and sales under the Agreements with the Other Investors; and (bc) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each . The Investor’s obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading Investors shall have executed Agreements for the purchase of at least 6,000,000 Shares and Warrants for the purchase of at least 3,000,000 Warrant Shares (50% warrant coverage), (b) the representations and warranties of the Company set forth herein shall be true and correct as of the Closing Date in the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market all material respects (except for any suspension representations and warranties that speak as of trading of limited duration agreed to by the Companya specific date, which suspension representations and warranties shall be terminated prior to the Closing Date); (btrue and correct as of such date) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; and (c) the accuracy of the representations and warranties made by the Company in Section 4 below as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events Investor shall have occurred that would received such documents as such Investor shall reasonably be likely to have or result in requested, including, a Material Adverse Effect (as defined below); and the receipt standard opinion of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject counsel as to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLPon July 6, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 2005 (the “Closing Date”), at the offices of the Company’s counsel; provided, however, that the Closing for the purposes of (i) any sale of Shares and Warrants to Investors who are officers or such later date as directors of the conditions to closing are met or waivedCompany, or their affiliates (collectively, the “Affiliate Investors”) and (ii) any sale of Shares and Warrants to non-Affiliate Investors in excess of 19.99% of the outstanding common stock on the trading day immediately preceding the date set forth above (the “Excess Amount”) shall be subject to such other stockholder approval and shall be the date which is one business day following such stockholder approval. The Affiliate Investors shall place the full purchase price for the Shares and time as Warrants being purchased by them hereunder in escrow (the Company “Escrow”) pursuant to the terms of the Escrow Agreement (defined below) at the initial Closing. In addition, each non-Affiliate Investor shall place a portion of its purchase price for the Shares and Warrants being purchased by it hereunder into the Investors mutually agreeEscrow, such pro rata portion being equal to the product of (A) the Excess Amount and (B) a fraction equal to (1) the number of Shares purchased by such non-Affiliate Investor divided by (2) the total number of Shares being purchased by all non-Affiliate Investors. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor one or more stock certificates representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Shares and Warrantsa Warrant to purchase the number of Warrant Shares, and deliver each as set forth pursuant to each Investor their respective certificates for their Shares and their Warrants duly registered in the name Section 3 of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Securities Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of the Securities Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue and deliver the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by U.S. Bank National Association (the “Escrow Agent”) under the Escrow Agreement dated as of July 1, 2005 by and between the Company and the Escrow Agent (the “Escrow Agreement”) of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants Warrant being purchased hereunder as set forth on Exhibit A hereto (in Section 3 of the “Securities Purchase Price”)Agreement; and (b) completion of the purchases and sales under the Agreements with the Other Investors, subject to the provisos in the previous and following paragraphs with regard to the Affiliate Investors; (c) receipt by the Company of a completed Investor Questionnaire; (d) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each ; and (e) the filing of a Form 8-K with the Securities and Exchange Commission (the “SEC”) disclosing the material terms of the transactions contemplated hereby and any information provided by the Company or any person acting on its behalf that the Company believes constitutes material and non-public information. The Investor’s obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading in Investors shall have executed Agreements for the Common Stock shall not have been suspended by purchase of at least 8,900,000 Shares and Warrants to purchase at least 2,670,000 Warrant Shares (the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing Date“Minimum Purchase Amount”); (b) receipt each of a satisfactory legal opinion from the Affiliate Investors shall have executed and delivered to the Company voting agreements in the form attached as Exhibit C with respect to the voting of the shares of common stock of the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) receipt by the accuracy Escrow Agent of the representations Minimum Purchase Amount (including the Shares and warranties made Warrants to be purchased by the Company in Section 4 below as Affiliate Investors), provided that funds (i) provided for the purchase of the Closing Excess Amount and the fulfillment of those undertakings of (ii) provided by Affiliate Investors shall be released to the Company to be fulfilled prior to from Escrow by the Closing, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the Escrow Agent upon receipt of a customary certificate from of the Secretary of the Company certifying that the foregoingrequired stockholder approval has been obtained (it being understood that all other funds shall be released to the Company from Escrow at the Closing by the Escrow Agent upon its receipt of the Minimum Purchase Amount); (d) the representations and warranties of the Company set forth herein shall be true and correct as of the Closing Date in all material respects (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true and correct as of such date); and (e) the Investor shall have received such documents as such Investor shall reasonably have requested, including, a standard opinion of the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject counsel as to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants Units (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLPon September 24, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 2004 (the “Closing Date”), or such later date as at the conditions to closing are met or waived, or such other date and time as offices of the Company and the Investors mutually agreeCompany’s counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price to the Issuer, by wire transfer of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Shares and Warrants, and deliver to each Investor their respective certificates (i) using customary book-entry procedures, the number of Shares set forth opposite such Investor’s name on Schedule I hereto and (ii) a Warrant to purchase the number of Warrant Shares set forth opposite such Investor’s name on Schedule I hereto, and each Investor shall deliver a certified or official bank check or wire transfer of funds in the full amount of the aggregate purchase price for their the Shares and their Warrants duly registered in Warrant being purchased hereunder, as set forth opposite such Investor’s name on Schedule I hereto, to a trust account with Xxxxxx Godward LLP (the name of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing“Escrow Agent”). Each such certificate and Warrant shall be registered in the name of the Investors or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1, in the name of a nominee designated by the Investors. 3.2 The Company’s obligation to issue and sell the Shares and the Warrants a Warrant to the Investors each Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company Escrow Agent of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants the Warrant being purchased hereunder as set forth on Exhibit A hereto purchased; (b) completion of the “Purchase Price”)purchases and sales of Units under the Agreements that may be executed with the Other Investors; and (bc) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each . The Investor’s obligation to purchase the Shares and the Warrants Units shall be subject to the following conditions, any one or more of which may be waived by condition that the Investor: Placement Agent shall not have (a) trading in terminated the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed to by the CompanyPlacement Agency Agreement dated September 20, which suspension shall be terminated prior to the Closing Date); (b) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by the Company in Section 4 below as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing2004, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions set forth in Section 3.2(a), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder Placement Agent (the “Required InvestorsPlacement Agency Agreement”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto ) pursuant to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this thereof or (b) determined that the conditions to closing in the Placement Agency Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreementhave not been satisfied.

Delivery of the Shares and Warrants at Closing. 3.1 The It is expected that the completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August or about November 9, 2007 2004 (the “Closing Date”), or such later date as at the conditions to closing are met or waived, or such other date and time as offices of the Company and the Investors mutually agreeCompany’s counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor a Warrant representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Warrant Shares and Warrantsone or more stock certificates representing the number of Shares, and deliver to in each Investor their respective certificates for their Shares and their Warrants duly registered case as is set forth in the name Section 3 of the applicable Investor(s); Stock and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Warrant Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the signature page of the Stock Certificate Questionnaire attached hereto as Exhibit A-1and Warrant Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants the Warrant being purchased hereunder as set forth on Exhibit A hereto in Section 3 of the Stock and Warrant Purchase Agreement; (b) completion of the “Purchase Price”)purchases and sales under the Agreements with the Other Investors; and (bc) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each . The Investor’s obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading in the Common Stock representations and warranties of the Company set forth herein shall not have been suspended by be true and correct as of the Commission or the Nasdaq Global Market Closing Date (except for any suspension representations and warranties that speak as of trading of limited duration agreed to by the Companya specific date, which suspension representations and warranties shall be terminated true and correct as of such date) in all material respects and the fulfillment in all material respects of those undertaking of the Company in this Agreement to be fulfilled on or prior to the Closing Date); Date and (b) receipt the Investor shall have received such documents as such Investor shall reasonably have requested, including, a standard opinion of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by the Company in Section 4 below including as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 (a) The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at immediately following consummation of the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 Merger (the “Closing Date”)) at the offices of Xxxxxxx Procter LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 or such later date as the conditions to closing are met or waived, or at such other date and time place as may be mutually agreed by the Company and the Investors mutually agreeInvestors. At the Closing, unless the Investors and the Company otherwise agree shall (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investors one or more stock certificates representing the number of immediately available funds to the account designated Shares set forth on Exhibit C hereto; (ii) the Issuer shall issue to A, each Investor their respective Shares and Warrants, and deliver to each Investor their respective certificates for their Shares and their Warrants duly registered in the name of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each such certificate and Warrant shall to be registered in the name of the Investors each Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of this Agreement, in the name of a nominee designated by such Investor (at the Investors. 3.2 The Company’s obligation to issue the Shares and the Warrants to the Investors shall be subject to the following conditions, any one or more address of which may be waived by the Company: (a) receipt by the Company of the purchase price for the Shares and Warrants being purchased hereunder as each Investor set forth on the signature pages hereto); (ii) deliver to each Investor a Tranche I Warrant substantially in the form attached hereto as Exhibit C to purchase the number of shares of Common Stock set forth opposite each such Investor’s name on Exhibit A hereto (or, if so indicated on the “Purchase Price”)signature page of this Agreement, in the name of a nominee designated by such Investor; and (biii) deliver to each Investor a Tranche II Warrant substantially in the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each Investor’s obligation form attached hereto as Exhibit D to purchase the Shares and number of shares of Common Stock set forth opposite each such Investor’s name on Exhibit A or, if so indicated on the signature page of this Agreement, in the name of a nominee designated by such Investor. (i) The Tranche II Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor: (ai) trading in the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing Date); (b) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by exercisable only if the Company fails to consummate a Future Financing Transaction (as hereinafter defined) within the time period specified in Section 4 below as that definition and (ii) void ab initio if a Future Financing Transaction is consummated within such time period. (ii) For purposes hereof, “Future Financing Transaction” shall mean any financing (or series of the Closing and the fulfillment of those undertakings related financings) of the Company to be fulfilled prior to (including in connection with the Closing, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); purchase and sale by the receipt of a customary certificate from the Secretary ROFR Offerees upon exercise of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions ROFR Rights set forth in Section 3.2(a), 1.4 hereof) that closes within 270 days after the Closing Date and involving the issuance of a Future Financing Security in which the aggregate gross proceeds to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory equals or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to exceeds $63,000,0002.5 million. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 (a) The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at immediately following consummation of the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 Merger (the “Closing Date”)) at the offices of Xxxxxxx Procter LLP, 00 Xxxxx Xxxxxx, Xxxxxx, XX 00000 or such later date as the conditions to closing are met or waived, or at such other date and time place as may be mutually agreed by the Company and the Investors mutually agreeInvestors. At the Closing, unless the Investors and the Company otherwise agree shall (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investors one or more stock certificates representing the number of immediately available funds to the account designated Shares set forth on Exhibit C hereto; (ii) the Issuer shall issue to A, each Investor their respective Shares and Warrants, and deliver to each Investor their respective certificates for their Shares and their Warrants duly registered in the name of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each such certificate and Warrant shall to be registered in the name of the Investors each Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of this Agreement, in the name of a nominee designated by such Investor (at the Investorsaddress of each Investor set forth on the signature pages hereto); and (ii) deliver to each Investor a Warrant substantially in the form attached hereto as Exhibit B to purchase the number of shares of Common Stock set forth opposite each such Investor’s name on Exhibit A or, if so indicated on the signature page of this Agreement, in the name of a nominee designated by such Investor. 3.2 (b) The Company’s obligation to issue the Shares and the Warrants to the Investors shall be subject to the following conditions, any one or more of which may be waived by the Company: : (ai) receipt by the Company of a wire transfer of funds to an account designated by the purchase price Company in the full amount of the Purchase Price for all of the Shares and Warrants being purchased hereunder as set forth on Exhibit A hereto A; (ii) consummation of the “Purchase Price”)Merger; and and (biii) the accuracy of the representations and warranties made by the Investors and the fulfillment satisfaction of those the undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each Investor’s obligation (c) The Investors’ obligations to purchase the Shares and the Warrants shall be subject to the following conditions, any one or more of which may be waived by any Investor hereunder as to itself only: (i) consummation of the Investor: Merger on terms and conditions satisfactory to the Investors; (aii) trading in consummation of the Common Stock shall not have been suspended transaction, contemplated by the Commission or Credit Agreement and related Security Agreement, dated as of October 16, 2006 (the Nasdaq Global Market “Credit Agreement”), by and among the Company, Vertical Communications Acquisition Corp., Acquisition Sub, on one hand, and Columbia Partners, L.L.C. Investment Management and NEIPF, L.P. (except for any suspension collectively, “Lender”), on terms and conditions satisfactory to the Investors; (iii) the Company shall have caused the Certificate of trading Powers, Designations, Preferences and Rights of limited duration agreed the Series E Preferred Stock in substantially the form attached hereto as Exhibit C (the “Certificate of Designations”) to be duly adopted and approved by the Company, which suspension ’s Board of Directors (the “Board of Directors”) and to be duly filed with the Secretary of State of Delaware (and the Investors shall be terminated prior to have received written confirmation of the Closing Datesame certified by the Secretary of State of Delaware); ; (b) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (civ) the accuracy Company having authorized, unissued and unreserved shares sufficient to permit issuance of all of the Shares proposed to be sold hereunder; (v) the representations and warranties made by of the Company in Section 4 below set forth herein shall be true, correct and complete as of the Closing Date in all respects (except for representations and the fulfillment warranties that speak as of those undertakings a specific date, which representations and warranties shall be true, correct and complete as of such date); (vi) performance and compliance by the Company with all covenants, agreements obligations and conditions required to be fulfilled prior to performed on or before the Closing, no event or series date hereof; (vii) the execution of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect Consent and Waiver Agreement (as defined belowin the Original Purchase Agreement); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; and (dviii) the Company’s delivery to its transfer agent Investors shall have received such documents as the Investors shall reasonably have requested, including, a standard opinion of irrevocable instructions to issue, subject Company counsel as to the fulfillment of conditions matters set forth in Section 3.2(athe form attached as Exhibit D hereto and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares Shares. The Warrants, the Merger Agreement, the Credit Agreement, the Certificate of Designations and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares Consent and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Waiver Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants collectively be referred to be purchased hereunder (herein as the “Required InvestorsAncillary Agreements.”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 915, 2007 2005 (the “Closing Date”), or such later date as at the conditions to closing are met or waived, or such other date and time as offices of the Company and the Investors mutually agreeCompany’s counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor one or more stock certificates representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Shares and Warrantsa Warrant to purchase the number of Warrant Shares, and deliver each as set forth pursuant to each Investor their respective certificates for their Shares and their Warrants duly registered in the name Section 3 of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Securities Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of the Securities Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue and deliver the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by Xxxxxx Xxxxxx LLP (the Company “Escrow Agent”) of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants Warrant being purchased hereunder as set forth on Exhibit A hereto in Section 3 of the Securities Purchase Agreement; (b) completion of the “Purchase Price”)purchases and sales under the Agreements with the Other Investors; (c) receipt by the Company of a completed Investor Questionnaire; and (bd) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each . The Investor’s obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading in Investors shall have executed Agreements for the Common Stock shall not have been suspended by purchase of at least [ ] Shares and Warrants to purchase at least [ ] Warrant Shares (the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing Date“Minimum Purchase Amount”); (b) receipt the representations and warranties of the Company set forth herein shall be true and correct as of the Closing Date in all material respects (except for representations and warranties that speak as of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 specific date, which representations and warranties shall be true and correct as of this Agreementsuch date); and (c) the accuracy of the representations and warranties made by the Company in Section 4 below as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events Investor shall have occurred that would received such documents as such Investor shall reasonably be likely to have or result in requested, including, a Material Adverse Effect (as defined below); and the receipt standard opinion of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject counsel as to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The It is expected that the completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLPon or about October 28, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 2009 (the “Closing Date”)) at the offices of the Company’s counsel; provided, or such later however, that this Agreement shall automatically terminate if the Closing shall not have been consummated within 10 days following the date as the conditions to closing are met or waived, or such other date and time as the Company and the Investors mutually agreehereof. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor a Warrant representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Warrant Shares and Warrantsone or more stock certificates representing the number of Shares, and deliver to in each Investor their respective certificates for their Shares and their Warrants duly registered case as is set forth in the name Section 3 of the applicable Investor(s); Stock and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Warrant Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the signature page of the Stock Certificate Questionnaire attached hereto as Exhibit A-1and Warrant Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company shall have received a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants the Warrant being purchased hereunder as set forth on Exhibit A hereto (in Section 3 of the “Stock and Warrant Purchase Price”); Agreement and (b) the accuracy of the representations and warranties made by of the Investors set forth herein shall be true and correct as of the date when made and as of the Closing Date in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) and the fulfillment of those undertakings of the Investors to contained in this Agreement shall have be fulfilled in all material respects on or prior to the Closing. 3.3 Each Closing Date. The Investor’s obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading in the Common Stock representations and warranties of the Company set forth herein shall not have been suspended by be true and correct as of the Commission or date when made and as of the Nasdaq Global Market Closing Date (except for any suspension representations and warranties that speak as of trading of limited duration agreed to by the Companya specific date, which suspension representations and warranties shall be terminated true and correct as of such date) in all material respects (except for those representations and warranties that are qualified by materiality or Material Adverse Effect, which shall be true and correct in all respects) and the undertakings of the Company contained in this Agreement shall have been fulfilled in all material respects on or prior to the Closing Date); Date and (b) receipt the Investor shall have received such documents as such Investor shall reasonably have requested, including, a standard opinion of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by the Company in Section 4 below including as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions matters set forth in Section 3.2(a4.3 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 (a) The completion of the purchase and sale of the Shares and the Warrants (the “"Closing”") shall occur immediately following consummation of the Merger (the "Closing Date") at the offices of Holme Rxxxxxx & Oxxx Goodwin Procter LLP, 1000 Xxxxxxx Xxxxxx53 State Street, Xxxxx 0000Boston, Xxxxxx, Xxxxxxxx 00000, MA 02109 or at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”), or such later date as the conditions to closing are met or waived, or such other date and time xxxxx as the Company and the Investors mutually agreemay be mutuxxxx xxxxxx xx xxx Xxxxxxx xxx xxe Investors. At the Closing, unless the Investors and the Company otherwise agree shall (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investors one or more stock certificates representing the number of immediately available funds to the account designated Shares set forth on Exhibit C hereto; (ii) the Issuer shall issue to A, each Investor their respective Shares and Warrants, and deliver to each Investor their respective certificates for their Shares and their Warrants duly registered in the name of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each such certificate and Warrant shall to be registered in the name of the Investors each Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of this Agreement, in the name of a nominee designated by such Investor (at the Investorsaddress of each Investor set forth on the signature pages hereto); and (ii) deliver to each Investor a Warrant substantially in the form attached hereto as Exhibit B to purchase the number of shares of Common Stock set forth opposite each such Investor's name on Exhibit A or, if so indicated on the signature page of this Agreement, in the name of a nominee designated by such Investor. 3.2 (b) The Company’s 's obligation to issue the Shares and the Warrants to the Investors shall be subject to the following conditions, any one or more of which may be waived by the Company: : (ai) receipt by the Company of a wire transfer of funds to an account designated by the purchase price Company in the full amount of the Purchase Price for all of the Shares and Warrants being purchased hereunder as set forth on Exhibit A hereto A; (ii) consummation of the “Purchase Price”)Merger; and and (biii) the accuracy of the representations and warranties made by the Investors and the fulfillment satisfaction of those the undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each Investor’s obligation (c) The Investors' obligations to purchase the Shares and the Warrants shall be subject to the following conditions, any one or more of which may be waived by any Investor hereunder as to itself only: (i) consummation of the Investor: Merger on terms and conditions satisfactory to the Investors; (aii) trading in consummation of the Common Stock shall not have been suspended transaction, contemplated by the Commission or Credit Agreement and related Security Agreement, dated as of October 16, 2006 (the Nasdaq Global Market "Credit Agreement"), by and among the Company, Vertical Communications Acquisition Corp., Acquisition Sub, on one hand, and Columbia Partners, L.L.C. Investment Management and NEIPF, L.P. (except for any suspension collectively, "Lender"), on terms and conditions satisfactory to the Investors; (iii) the Company shall have caused the Certificate of trading Powers, Designations, Preferences and Rights of limited duration agreed the Series E Preferred Stock in substantially the form attached hereto as Exhibit C (the "Certificate of Designations") to be duly adopted and approved by the Company, which suspension 's Board of Directors (the "Board of Directors") and to be duly filed with the Secretary of State of Delaware (and the Investors shall be terminated prior to have received written confirmation of the Closing Datesame certified by the Secretary of State of Delaware); ; (b) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (civ) the accuracy Company having authorized, unissued and unreserved shares sufficient to permit issuance of all of the Shares proposed to be sold hereunder; (v) the representations and warranties made by of the Company in Section 4 below set forth herein shall be true, correct and complete as of the Closing Date in all respects (except for representations and the fulfillment warranties that speak as of those undertakings a specific date, which representations and warranties shall be true, correct and complete as of such date); (vi) performance and compliance by the Company with all covenants, agreements obligations and conditions required to be fulfilled prior to performed on or before the Closing, no event or series date hereof; (vii) the execution of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect Consent and Waiver Agreement (as defined belowin the Original Purchase Agreement); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; and (dviii) the Company’s delivery to its transfer agent Investors shall have received such documents as the Investors shall reasonably have requested, including, a standard opinion of irrevocable instructions to issue, subject Company counsel as to the fulfillment of conditions matters set forth in Section 3.2(athe form attached as Exhibit D hereto and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares Shares. The Warrants, the Merger Agreement, the Credit Agreement, the Certificate of Designations and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares Consent and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Waiver Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by collectively be referred to herein as the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement"Ancillary Agreements."

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”)) on November 24, or such later date as 2004, at the conditions to closing are met or waived, or such other date and time as offices of the Company and the Investors mutually agreeCompany’s counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor a Warrant representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Warrant Shares and Warrantsone or more stock certificates representing the number of Shares, and deliver to in each Investor their respective certificates for their Shares and their Warrants duly registered case as is set forth in the name Section 3 of the applicable Investor(s); Stock and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Warrant Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the signature page of the Stock Certificate Questionnaire attached hereto as Exhibit A-1and Warrant Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants the Warrant being purchased hereunder as set forth on Exhibit A hereto (in Section 3 of the “Stock and Warrant Purchase Price”)Agreement; and (b) completion of the purchases and sales under the Agreements with the Other Investors; (c) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each ; and (d) delivery of a completed Selling Stockholder Notice and Questionnaire in substantially the form attached hereto as Exhibit C. The Investor’s obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading Investors shall have executed Agreements for the purchase of at least 4,363,534 Shares and Warrants for the purchase of at least 3,272,649 Warrant Shares (75% warrant coverage), (b) the representations and warranties of the Company set forth herein shall be true and correct as of the Closing Date in the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market all material respects (except for any suspension representations and warranties that speak as of trading of limited duration agreed to by the Companya specific date, which suspension representations and warranties shall be terminated prior to the Closing Date); (btrue and correct as of such date) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; and (c) the accuracy of the representations and warranties made by the Company in Section 4 below as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events Investor shall have occurred that would received such documents as such Investor shall reasonably be likely to have or result in requested, including, a Material Adverse Effect (as defined below); and the receipt standard opinion of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject counsel as to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The (a) Except as set forth in this Section 1.3, the completion of the purchase and sale of the Shares and the Warrants (the “"Closing”") shall occur on the date hereof (the "Closing Date"), at the offices of Holme Rxxxxxx & Oxxx Goodwin Procter LLP, 1000 Xxxxxxx Xxxxxx53 State Street, Xxxxx 0000Boston, Xxxxxx, Xxxxxxxx 00000, MA 02109 at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”)AM Eastxxx xxxe, or at such later date as the conditions to closing are met or waived, or such other date and time as xxxxx xxxx xxx xxxxx xx xxx xx xxtually agreed upon by the Company and the Investors mutually agreeInvestors. At the Closing, unless the Company shall (1) either (x) deliver to the Investors and one or more stock certificates representing the Company otherwise agree (i) each Investor shall pay the Purchase Price to the Issuer, by wire transfer number of immediately available funds to the account designated Shares set forth on Exhibit C hereto; (ii) the Issuer shall issue to A, each Investor their respective Shares and Warrants, and deliver to each Investor their respective certificates for their Shares and their Warrants duly registered in the name of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each such certificate and Warrant shall to be registered in the name of the Investors each Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of this Agreement, in the name of a nominee designated by such Investor or (y) direct its transfer agent to deliver such certificates to the InvestorsInvestors (at the address of each Investor set forth on the signature pages hereto) within three (3) business days after the Closing Date; and (2) deliver to each Investor a Warrant substantially in the form attached hereto as Exhibit B to purchase the number of shares of Common Stock set forth opposite such Investor's name on Exhibit A or, if so indicated on the signature page of this Agreement, in the name of a nominee designated by such Investor. 3.2 (b) The Company’s 's obligation to issue the Shares and the Warrants to the Investors shall be subject to the following conditions, any one or more of which may be waived by the Company: (a1) receipt by the Company of a wire transfer of funds to an account designated by the Company in the full amount of the purchase price for all of the Shares and Warrants being purchased hereunder as set forth on Exhibit A hereto (the “Purchase Price”)A; and (b2) the accuracy of the representations and warranties made by the Investors and the fulfillment satisfaction of those the undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each Investor’s obligation (c) The Investors' obligations to purchase the Shares and the Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investorany Investor hereunder as to itself only: (a1) trading in the Common Stock shall not have been suspended by Company having authorized, unissued and unreserved shares sufficient to permit issuance of all of the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed Shares proposed to by the Company, which suspension shall be terminated prior to the Closing Date)sold hereunder; (b2) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by of the Company in Section 4 below set forth herein shall be true, correct and complete as of the Closing Date in all respects (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true, correct and complete as of such date); (3) performance and compliance by the fulfillment of those undertakings Company with all covenants, agreements obligations and conditions required to be performed on or before the date hereof; (4) the execution of the Company to be fulfilled prior to the ClosingConsent and Waiver, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions set forth in Section 3.2(a), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire form attached hereto as Exhibit A-1 such number C (the "Consent and Waiver") providing for, among other things, the consent and waiver of Shares set forth on such Investor’s signature page heretocertain rights and obligations, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such InvestorCompany and the parties thereto; (e5) the Amendment execution of the Rights Agreement individual Voting Agreements in the form attached hereto as Exhibit D-1 by and between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result certain of the OfferingInvestors (collectively, the "Voting Agreements") or Amendment No. 1 to Voting Agreement in the form attached hereto as Exhibit D-2 by and between and certain of the Investors (collectively, the "Amended Voting Agreements"); (f6) the filing with Investors shall have received such documents as the Nasdaq Global Market Investors shall reasonably have requested, including, a true standard opinion of Company counsel as to the matters set forth in the form attached as Exhibit E hereto and complete Notification Form: Listing as to exemption from the registration requirements of Additional Shares covering the Shares and Securities Act of 1933, as amended (the Warrant Shares; (g) all governmental"Securities Act"), regulatory or third party consents and approvals, if any, necessary for of the sale of the Shares and the Warrants have been duly obtainedWarrants; (h7) the Company shall have caused the Certificate of Powers, Designations, Preferences and Rights of the Series D Preferred Stock in the form attached hereto as Exhibit F (the "Certificate of Designations") to be duly adopted and approved by the Company's Board of Directors (the "Board of Directors") and to be duly filed with the Secretary of State of the State of Delaware (and the Investors shall have received written confirmation of the same certified by the Secretary of State of the State of Delaware); and (8) the Company and Silicon Valley Bank ("SVB") shall have executed all necessary amendments, waivers and/or consents relating to certain loan documents and related documentation between the Company and SVB evidencing SVB's consent and approval of the Nasdaq Global Market transactions contemplated hereby (such amendments, waivers and/or consents are collectively as the "SVB Documents"), all in form and substance acceptable to list the Shares Investors and the Warrant Shares; Investors shall have received copies of all executed SVB Documents. The Warrants, the Consent and (i) Waiver, the aggregate Purchase Price Voting Agreements, the Amended Voting Agreements and the SVB Documents shall collectively be referred to be paid by herein as the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000"Ancillary Agreements. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement."

Delivery of the Shares and Warrants at Closing. 3.1 The It is expected that the completion of the purchase and sale of the Shares and the Warrants (the “Closing”) shall occur at the offices of Holme Rxxxxxx & Oxxx LLPon or about November 4, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 2005 (the “Closing Date”), or such later date as at the conditions to closing are met or waived, or such other date and time as offices of the Company and the Investors mutually agreeCompany’s counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor (a) one or more stock certificates representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Shares and (b) one or more warrant certificates representing the number of Warrants, and deliver to in each Investor their respective certificates for their Shares and their Warrants duly registered case as is set forth in the name Section 3 of the applicable Investor(s); and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Securities Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the Stock Certificate Questionnaire attached hereto as Exhibit A-1signature page of the Securities Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s obligation to issue the Shares and the Warrants to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants being purchased hereunder as set forth on Exhibit A hereto in Section 3 of the Securities Purchase Agreement; (b) completion of the “Purchase Price”)purchases and sales under the Agreements with the Other Investors; and (bc) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each . The Investor’s obligation to purchase the Shares and the Warrants shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading in the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market (except for any suspension of trading of limited duration agreed to by the Company, which suspension shall be terminated prior to the Closing Date); (b) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; (c) the accuracy of the representations and warranties made by of the Company in Section 4 below set forth herein shall be true and correct as of the Closing Date (except for representations and warranties that speak as of a specific date, which representations and warranties shall be true and correct as of such date) in all material respects and the fulfillment in all material respects of those undertakings of the Company in this Agreement to be fulfilled on or prior to the Closing, no event or series of events Closing Date and (b) the Investor shall have occurred that would received such documents as such Investor shall reasonably be likely to have or result in requested, including, a Material Adverse Effect (as defined below); and the receipt standard opinion of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject counsel including as to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.

Delivery of the Shares and Warrants at Closing. 3.1 The completion of the purchase and sale of the Shares and the Warrants (the “"Closing”") shall occur (the "Closing Date") on July 11, 2003, at the offices of Holme Rxxxxxx & Oxxx LLP, 1000 Xxxxxxx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, at 10:00 o’clock A.M. E.S.T. on August 9, 2007 (the “Closing Date”), or such later date as the conditions to closing are met or waived, or such other date and time as the Company and the Investors mutually agreeCompany's counsel. At the Closing, unless the Investors and the Company otherwise agree (i) each Investor shall pay the Purchase Price deliver to the Issuer, by wire transfer Investor a Warrant representing the number of immediately available funds to the account designated on Exhibit C hereto; (ii) the Issuer shall issue to each Investor their respective Warrant Shares and Warrantsone or more stock certificates representing the number of Shares, and deliver to in each Investor their respective certificates for their Shares and their Warrants duly registered case as is set forth in the name Section 3 of the applicable Investor(s); Stock and (iii) all other agreements and other documents referred to in this Agreement which are required for the Closing shall be executed and delivered (if that is not done prior to the Closing). Each Warrant Purchase Agreement, each such certificate and Warrant shall to be registered in the name of the Investors Investor or, if so indicated on the signature page of the Stock Certificate Questionnaire attached hereto as Exhibit A-1and Warrant Purchase Agreement, in the name of a nominee designated by the Investors. 3.2 Investor. The Company’s 's obligation to issue the Shares and the Warrants Warrant to the Investors Investor shall be subject to the following conditions, any one or more of which may be waived by the Company: (a) receipt by the Company of a certified or official bank check or wire transfer of funds in the full amount of the purchase price for the Shares and Warrants the Warrant being purchased hereunder as set forth on Exhibit A hereto in Section 3 of the Stock and Warrant Purchase Agreement; (b) completion of the “Purchase Price”)purchases and sales under the Agreements with the Other Investors; and (bc) the accuracy of the representations and warranties made by the Investors and the fulfillment of those undertakings of the Investors to be fulfilled prior to the Closing. 3.3 Each . The Investor’s 's obligation to purchase the Shares and the Warrants Warrant shall be subject to the following conditions, any one or more of which may be waived by the Investor: (a) trading Investors shall have executed Agreements for the purchase of at least 4,444,445 Shares and Warrants for the purchase of at least 1,333,334 Warrant Shares, (b) the representations and warranties of the Company set forth herein shall be true and correct as of the Closing Date in the Common Stock shall not have been suspended by the Commission or the Nasdaq Global Market all material respects (except for any suspension representations and warranties that speak as of trading of limited duration agreed to by the Companya specific date, which suspension representations and warranties shall be terminated prior to the Closing Date); (btrue and correct as of such date) receipt of a satisfactory legal opinion from the Company’s legal counsel pursuant to Section 2.3 of this Agreement; and (c) the accuracy Investor shall have received such documents as such Investor shall reasonably have requested, including, a standard opinion of the representations and warranties made by the Company in Section 4 below Company's counsel as of the Closing and the fulfillment of those undertakings of the Company to be fulfilled prior to the Closing, no event or series of events shall have occurred that would reasonably be likely to have or result in a Material Adverse Effect (as defined below); and the receipt of a customary certificate from the Secretary of the Company certifying the foregoing; (d) the Company’s delivery to its transfer agent of irrevocable instructions to issue, subject to the fulfillment of conditions matters set forth in Section 3.2(a4.2 and as to exemption from the registration requirements of the Securities Act of 1933, as amended (the "Securities Act"), to each Investor or in such nominee name(s) as designated by each Investor in the Stock Certificate Questionnaire attached hereto as Exhibit A-1 such number of Shares set forth on such Investor’s signature page hereto, or if requested by the Investor, one or more certificates representing such Shares registered in such name(s) or nominee name(s) requested by such Investor; (e) the Amendment of the Rights Agreement between the Company and American Stock Transfer & Trust Company dated June 17, 2002 to amend the definition in “Acquiring Person” of Beneficial Owner to increase the limit from 15% to 25.0% for any Investor who becomes a Beneficial Owner of greater than 15% as a result of the Offering; (f) the filing with the Nasdaq Global Market a true and complete Notification Form: Listing of Additional Shares covering the Shares and the Warrant Shares; (g) all governmental, regulatory or third party consents and approvals, if any, necessary for the sale of the Shares and the Warrants have been duly obtained; (h) the approval of the Nasdaq Global Market to list the Shares and the Warrant Shares; and (i) the aggregate Purchase Price to be paid by the Investors for the Shares and Warrants shall be greater than or equal to $63,000,000Warrants. 3.4 In the event that the Closing shall not have occurred on or before 5:00 p.m. on the tenth (10th) Business Day after the date hereof due to the condition set forth in Section 3.3(h) above, this Agreement shall terminate (a “Specified Termination”) unless otherwise agreed by the Company and Investors representing at least a majority of the aggregate number of Shares and Warrants to be purchased hereunder (the “Required Investors”). Upon a Specified Termination, this Agreement shall terminate without liability of any party hereto to any other party; provided, however, that upon a Specified Termination the Company shall pay for or reimburse the Investors for the reasonable expenses of one legal counsel in connection with the Offering, not to exceed $50,000. Nothing contained in this Section 3.4 shall be deemed to release any party from any liability for any breach by such party of the terms and provisions of this Agreement or to impair the right of any party to compel specific performance by any other party of its obligations under this Agreement.