Common use of First Closing Clause in Contracts

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c), the first closing (the "First Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date of the First Closing is referred to as the "First Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

First Closing. (1) Subject The obligation of an Investor to purchase Series A Preferred Shares at the First Closing is subject to the fulfillment to the satisfaction (or, where permissible, waiver) of such Investor at or prior to the First Closing of each of the conditions to closing set forth following conditions: (a) Each of the representations and warranties of the Company contained in Section 1.2(c), the first closing (the "First Closing") shall take place at a time and date as Article VII shall be agreed upon by the parties heretotrue, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location correct and complete on and as agreed by the parties in writing. The date of the First Closing is referred Date as though then made. (b) All covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Company on or prior to the First Closing Date shall have been performed or complied with. (c) On or prior to the First Closing Date, any authorizations, consents, approvals or permits of any Governmental Authority that are required by law in connection with the lawful sale and issuance of the Series A Preferred Shares, and the consummation of the transactions contemplated by this Agreement and each of the Transaction Documents, shall have been duly obtained by the Company and shall be effective on and as of the "First Closing Date, except for any notice filings pursuant to Regulation D under the Securities Act and pursuant to applicable state securities laws not required to be made on or prior to the First Closing Date." (2d) Subject On or prior to the satisfaction First Closing Date, the Company shall have delivered to special counsel to the Investors copies of all consents and approvals of third parties required under all Contracts to which the Company is a party or by which the Company or any of its assets or properties is affected in connection with the execution, delivery or performance by the Company of this Agreement, the Transaction Documents or any of the conditions described in Section 1.2(cother agreements or documents contemplated hereby (including waivers of all preemptive rights and rights of first refusal), at . (e) [Intentionally omitted.] (f) Effective as of the First Closing, the number of directors constituting the entire Board of Directors of the Company will shall have been fixed at no more than seven (7), and shall consist of Xxxxx Xxxx, Xxxxxx Xxxx, Xxxx Xxxxx, Xxxx Xxxx, Xxxxxxx XxXxxxxx, Xxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxx. (g) Such Investor shall have received the satisfactory review, by patent counsel selected by the Investors, of the Intellectual Property Rights underlying the XT250. (h) Each other Investor shall have fulfilled its obligations to deliver its respective portion of the First Purchase Price required to be delivered by it at the First Closing and to otherwise close its investment in the Series A Preferred Stock. (i) The Company shall have delivered to special counsel to the Investor one or more certificates bearing Investors each of the appropriate legends herein provided for and free and clear following: (i) Copy of all Liens representing 1,812,500 shares the Certificate of Common Stock (the "Initial Purchased Shares") against payment Incorporation certified as of a recent date by the Investor Secretary of $7,250,000 State of the State of Delaware; (ii) Certificate of good standing and certificate of status of the "Initial Purchase Price"Company, as applicable, issued as of a recent date by the Secretary of State of the States of Delaware and Florida; (iii) Certificate of the Chief Executive Officer or the President of the Company, dated the First Closing Date, to the effect that the conditions specified in Sections 3.1(a) through 3.1(f) have been satisfied fully; (iv) Certificate of the Secretary or an Assistant Secretary of the Company, dated the First Closing Date, in form and substance reasonably satisfactory to special counsel to the Investors, as to: (i) no amendments to the Certificate of Incorporation since the date of certification referenced in subparagraph (i) above; (ii) the By-laws (which shall include the provisions set forth in Exhibit E); (iii) the resolutions duly adopted by wire transfer the Board authorizing and approving, as appropriate, the execution, delivery and performance of immediately available United States funds this Agreement and each of the Transaction Documents to which the Company is a bank account designated party and the transactions contemplated hereby and thereby, including the issuance, sale and delivery of the Series A Preferred Shares and the reservation for issuance of the Conversion Common Shares; (iv) resolutions duly adopted by the shareholders of the Company approving the Certificate of Incorporation; and (v) the incumbency and signatures of the officers of the Company authorized to execute and deliver this Agreement and any of the Transaction Documents to which the Company is a party; (v) Indemnification Agreements in the form attached hereto as Exhibit F between the Company and each member of the Board of Directors, including Xxxxxx Xxxxxxx and Xxxxxxxx Xxxxxxxx; (vi) Legal opinion of GY&S, outside counsel for the Company, dated the First Closing Date, addressed to the Investors and in the form attached hereto as Exhibit G; (vii) Registration Rights Agreement, duly executed by the Company; provided; (viii) Shareholders Agreement, that if duly executed by the Initial Purchased Shares would cause Company, the Investor or its Affiliates to be deemed for purposes Investors and the holders of the Bank Holding Company Act of 1956, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10at least 75% or more of the outstanding shares of any class of voting securities Common Stock of the Company or to otherwise control (including the directors, senior managers and founders of the Company) (for purposes of determining such 75%, then the Investor Series A Preferred Shares issuable at the First Closing shall purchase be treated as the highest number of shares of Common Stock at a purchase price of $4.00 per share into which such shares may be converted); and (and the Initial Purchase Price shall be reduced accordinglyix) such that other documents, instruments, approvals or opinions relating to the Investor will not be deemed for purposes of transactions contemplated by this Agreement as the BHC Act Investors or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesInvestors’ special counsel may reasonably request.

First Closing. (1i) Subject to The closing of the satisfaction transactions contemplated by clause (or, where permissible, waiveri) of the conditions to closing set forth in Section 1.2(c), the first closing 2.1 (the "“First Closing"”) shall take place at a time and date as shall be agreed upon by remotely via the parties hereto, but in no event later than electronic exchange of closing deliveries (i) on the third business day that is two (2) Business Days after the date of satisfaction or waiver of on which the last of the conditions specified set forth in Section 1.2(c)7.1, at Section 7.2 and Section 7.3 (other than any such conditions that by their terms are not capable of being satisfied until the offices First Closing Date, but subject to the satisfaction or waiver of Skaddenthose conditions) is satisfied or, Arpswhen permissible, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or location at such other time or place as agreed by the parties Parties may mutually agree upon in writingwriting (such date, the “First Closing Date”). The date of the First Closing is referred to as shall be effective for all purposes at 12:01 a.m. central time on the "First Closing Date." (2ii) Subject to the satisfaction of the conditions described in Section 1.2(c), at At the First Closing, the Company will deliver shall deliver, or cause to be delivered, to Buyer the following: (A) evidence of resignations or removals, effective as of the First Closing, of each of the directors, managers and officers of the First Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior to the Investor one or more certificates bearing the appropriate legends herein provided for First Closing; (B) a duly executed FIRPTA Certificate and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated IRS Form W-9 by the Company, in each case, in a form reasonably acceptable to Buyer; provided, provided that Buyer’s sole right if the Initial Purchased Shares would cause the Investor Company fails to provide such FIRPTA Certificate or its Affiliates IRS Form W-9 shall be to be deemed for purposes make an appropriate withholding under Sections 1445 or 1446(f) of the Bank Holding Company Act of 1956Code, as amended applicable; and (C) (1) the "BHC Act")Assignment and Assumption Agreement, or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control duly executed by the Company, then (2) an equity interest transfer power, duly executed by the Investor Company with respect to the Company’s First Closing Interests, and (3) the Transition Services Agreement, duly executed by Crestwood. (iii) At the First Closing, each Seller shall purchase deliver, or cause to be delivered, to Buyer, with respect to such Seller, the highest number of shares of Common Stock at a purchase price of $4.00 per share certificate referred to in Section 7.3(d). (iv) At the First Closing, Buyer shall deliver, or cause to be delivered, to the Company and the Initial Sellers the following: (1) the Assignment and Assumption Agreement, duly executed by Buyer, and (2) the Transition Services Agreement, duly executed by Buyer; (B) the First Closing Preliminary Purchase Price shall be reduced accordinglyPrice, in accordance with Section 2.2; and (C) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act certificate referred to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesin Section 7.2(c).

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c), the first closing (the "First Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last conditions set forth in Section 4.2(a) and Section 4.2(b) below, the completion of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date purchase and sale of the First Closing is referred to as Shares and the "First Closing Warrants (the “First Closing”) shall occur no later than the second business day after the execution of this Agreement by the Investor and the Company (the “First Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(c”), at in accordance with Rule 15c6-l promulgated under the First Closing, the Company will deliver to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Securities Exchange Act of 19561934, as amended (the "BHC “Exchange Act"”). At the First Closing, or (a) the Change in Bank Control Act of 1978Company shall cause Xxxxx Fargo Shareowner Services, as amended (the "CBC Act")Company’s “Transfer Agent”, to own 10% or more deliver to the Investor the number of First Closing Shares set forth on the Signature Page of the outstanding shares of any class of voting securities Investor registered in the name of the Investor or, if so indicated on the Investor Questionnaire of the Investor attached hereto as Exhibit A, in the name of a nominee designated by the Investor, (b) the Company shall cause to be delivered to the Investor a First Closing Warrant for the number of First Closing Warrant Shares set forth on the Signature Page of the Investor and (c) the aggregate purchase price for the First Closing Shares and the First Closing Warrants being purchased by the Investor at such First Closing as set forth on the Signature Page of the Investor will be delivered by or on behalf of the Investor to otherwise control the Company. Notwithstanding anything contained herein to the contrary, if the First Closing shall not have occurred on or prior to the date that is two (2) business days after the execution of this Agreement by the Investor and the Company (unless the First Closing shall not have occurred due to a breach by an Investor of the terms hereof), then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more may terminate this Agreement without further liability of any class of voting securities of kind to the Company or the Investor, provided that (i) any such termination of this Agreement shall not relieve any party hereto of any liability in respect of any breach hereof arising prior to otherwise control the Company. Any determinations under termination of this Agreement (or following such termination with respect to any provisions that survive the proviso termination of the immediately preceding this Agreement), and (ii) this last sentence of Section 4.1(a) and Sections 2.3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 18 and 19, shall take into account the appropriate regulatory treatment of convertible securitiessurvive any such termination.

First Closing. (1) Subject Upon the terms and subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c)this Agreement, the first initial closing (the "“First Closing"”) shall take place at a time and date as shall be agreed upon by the parties heretosoon as practicable, but in no event later than the third business day two (2) Business Days after the date of satisfaction or waiver of the last conditions set forth in Section 6.1 and Section 7.1 (or such other time as the Parties may agree) (the “First Closing Date”). At the First Closing, the following shall occur: (a) the Purchaser shall pay to the Company, in immediately available funds, the amount set forth in the first sentence of Section 3.01(b) of the Joint Development Agreement; (b) in exchange for the First Closing Amount (as defined in the Joint Development Agreement), the Company shall issue and sell to the Purchaser, and the Purchaser shall accept, the amount of Common Shares to be issued to the Purchaser at the First Closing as provided in the Joint Development Agreement; (c) the Company and the Purchaser shall enter into the Joint Development Agreement; (d) the Company, the Purchaser and the Founders shall enter into the Stockholders Agreement; (e) the Company shall enter into an employment agreement with each of the Founders in the form attached hereto as Exhibit C (each, an “Employment Agreement”); (f) the Purchaser shall enter into an amendment agreement with each Founder in the form attached hereto as Exhibit D (each, a “Consulting Amendment”), which Consulting Amendment shall amend the Consulting Agreement dated as of December 15, 2005 between the Purchaser and such Founder; (g) the President of the Company shall execute and deliver to the Purchaser at the First Closing a certificate certifying that the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date of the First Closing is referred to as the "First Closing Date."6.1(a) and Section 6.1(b) have been fulfilled; and (2h) Subject to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price Purchaser shall be reduced accordingly) such that execute and deliver any other documents, certificates and agreements necessary or desirable to accomplish the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesforegoing.

First Closing. (1) Subject The obligation of the Buyer hereunder to purchase the Debentures at the First Closing is subject to the satisfaction (orsatisfaction, where permissibleat or before the First Closing Date, waiver) of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion: (a) The Company shall have executed and delivered the Transaction Documents applicable to closing set forth in Section 1.2(c), the first closing First Closing and delivered the same to the Buyer. (b) The representations and warranties of the "First Closing") shall take place at a time and date as Company shall be agreed upon by true and correct in all material respects (except to the parties heretoextent that any of such representations and warranties are already qualified as to materiality in Article VI above, but in no event later than the third business day after which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location when made and as agreed by the parties in writing. The date of the First Closing is referred Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to as be performed, satisfied or complied with by the "Company at or prior to the First Closing Date." (2c) Subject The Buyer shall have received an opinion of counsel from counsel to the satisfaction Company in a form satisfactory to the Buyer and its counsel. (d) The Company shall have executed and delivered to Buyer a closing certificate in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the conditions described Company from the secretary of state (or comparable office) from the jurisdiction in Section 1.2(c)which the Company is incorporated, at as of a date within ten (10) days of the First Closing, Closing Date; (ii) the Company's Certificate of Incorporation; (iii) the Company will deliver to 's Bylaws; and (iv) copies ofthe resolutions ofthe board of directors of the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated Company consistent with Section 6.3, as adopted by the Company; provided's board of directors in a form reasonably acceptable to Buyer. (e) The Company shall have authorized, that if by appropriate resolution, the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes issuance of the Bank Holding Shares. (f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (g) The Company Act of 1956shall have executed such other agreements, certificates, confirmations or resolutions as amended (the "BHC Act"), or Buyer may required to consummate the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (transactions contemplated by this Agreement and the Initial Purchase Price shall Transaction Documents, including a closing statement and joint disbursement instructions as may be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesrequired by Buyer.

First Closing. (1) Subject The obligation of the Company hereunder to -------------- issue and sell the First Convertible Debenture and the First Warrants to the satisfaction (orBuyer at the Closing is subject to the satisfaction, where permissibleat or before the Closing Date, waiver) of each of the following conditions, provided that these conditions to closing set forth in Section 1.2(c), are for the first closing (the "First Closing") shall take place at a time Company's sole benefit and date as shall may be agreed upon waived by the parties hereto, but Company at any time in no event later than its sole discretion: (i) The Buyer shall have executed the third business day after Transaction Documents and delivered them to the date of satisfaction or waiver of Company. (ii) The Buyer shall have delivered to the last of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date of Escrow Agent the First Closing is referred to as Purchase Price for the "First Closing Date." (2) Subject Convertible Debenture and the First Warrants and the Escrow Agent shall have delivered the net proceeds to the satisfaction of the conditions described in Section 1.2(c), at the First Closing, the Company will deliver to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States U.S. funds pursuant to a bank account designated the wire instructions provided by the Company; provided. (iii) The representations and warranties of the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date), that if and the Initial Purchased Shares would cause Buyer shall have performed, satisfied and complied in all material respects with the Investor or its Affiliates covenants, agreements and conditions required by this Agreement to be deemed for purposes of performed, satisfied or complied with by the Bank Holding Company Act of 1956, as amended (Buyer at or prior to the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control Closing Date. If requested by the Company, then the Investor Company shall purchase the highest number of shares of Common Stock at have received a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes certificate, executed by an executive officer of the BHC Act or the CBC Act to own 10% or more of any class of voting securities Buyer, dated as of the Company or Closing Date, to otherwise control the foregoing effect and as to such other matters as may be reasonably requested by the Company. Any determinations under . (iv) The Company shall have filed a form UCC -1 with regard to the proviso Pledged Property and Pledged Collateral as detailed in the Security Agreement dated the date hereof and provided proof of such filing to the immediately preceding sentence Buyer. (v) The Company shall take into account the appropriate regulatory treatment of convertible securities.have executed a definitive stock purchase agreement with Viasys, Inc.

First Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) First Closing. The simultaneous consummation of the conditions to closing set forth transactions contemplated in this Section 1.2(c), the first closing 2.5 (the "First Closing") shall take place at a time and date as shall be agreed upon by shall, subject to the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified set forth in Section 1.2(c)Sections 6.1, 6.2 and 6.3, take place at 10:00 a.m. on March 19, 2004, at the offices of SkaddenXxxx Xxxxx LLP, ArpsPrinceton Xxxxxxxxx Village, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx 000 Xxxx Xxxxxx, Xxx XxxxXxxxxxxxx, Xxx Xxxx Xxxxxx 00000, or at such other date or location time and place as shall be mutually agreed upon by the parties in writingParties. The date of on which the First Closing occurs is referred to in this Agreement as the "First Closing Date". As promptly as reasonably practicable after the First Closing Date and in any event within 10 business days after the First Closing Date, the Seller shall deliver to the Purchaser any information, records and materials identified in Section 2.3(a) which shall not have been theretofore delivered. All such information, records and materials provided by the Seller shall be filed in files at the Facilities or packaged, organized and listed in a commercially reasonable manner, at the Seller's cost." (2b) Subject to Seller's Obligations at the satisfaction of the conditions described in Section 1.2(c), at First Closing. At the First Closing, the Company will Seller shall undertake, cause to be undertaken, deliver to the Investor one Purchaser and/or cause to be delivered to the Purchaser, as applicable, the following, each duly undertaken or more certificates bearing executed on behalf of the appropriate legends herein provided applicable party by an authorized officer thereof: (i) The Seller shall deliver to the Purchaser a Xxxx of Sale executed by the Seller with respect to the First Closing Acquired Assets in the form of Exhibit B; Xxxxxxx Purchase Option and Agreement ------------------------------------- (ii) Xxxxxx shall exercise the option to purchase the Xxxxxxx Facility in accordance with the Xxxxxxx Drive Lease and in connection therewith shall cause to be paid to Par Two Hundred and Fifty Thousand Dollars ($250,000) in immediately available funds as a deposit on the full purchase price for the Xxxxxxx Facility and free the Par Equipment; (iii) Xxxxxx and clear Par shall execute and deliver to the Purchaser the contract of all Liens representing 1,812,500 shares of Common Stock sale for the Xxxxxxx Facility in the form attached to the Xxxxxxx Drive Lease pursuant to which Xxxxxx shall purchase from Par, and Par shall sell to Xxxxxx, the Xxxxxxx Facility and the Par Equipment (the "Initial Purchased SharesXxxxxxx Contract of Sale"); (iv) against payment Xxxxxx shall deliver to the Purchaser the Assignment and Assumption of Contract of Sale executed by Xxxxxx in the Investor of $7,250,000 form attached hereto as Exhibit E (the "Initial Purchase PriceAssignment of Contract of Sale"); (v) by wire transfer of immediately available United States funds to a bank account designated by Par shall consent in writing in the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, form attached hereto as amended Exhibit F (the "BHC ActPar Consent"), or ) to the Change assignment of the Xxxxxxx Contract of Sale as contemplated by the Assignment of Contract of Sale; Use and License; Release of Liens and Grant of Consent by Third Parties ----------------------------------------------------------------------- (vi) The Seller shall deliver to the Purchaser the Use and License Agreement executed by the Seller in Bank Control Act of 1978, the form attached hereto as amended Exhibit H (the "CBC ActUse and License Agreement"); (vii) Xxxxx Partners III, L.P. shall execute and deliver to own 10% or more the Seller and the Purchaser the Agent's Release of Liens attached hereto as Exhibit I (the "Agent's Release of Liens"); (viii) The Voting Agreement in the form attached hereto as Exhibit M (the "Voting Agreement") shall be executed by the parties thereto and delivered to the Seller and the Purchaser; Xxxxxxx Facility Real Estate Closing ------------------------------------ (ix) Par shall execute and deliver to the Purchaser the following relating to the Xxxxxxx Facility: Deed, Affidavit of Title, Form 1099, a Xxxx of Sale relating to the Par Equipment, and other ancillary documentation and customary real estate closing deliveries as may be required by the title company in connection with the transactions relating to the Xxxxxxx Facility (collectively, the "Other Xxxxxxx Real Estate Documents"); (x) Xxxxxx shall, on the earlier of the outstanding shares First Closing Date or March 19, 2004, remove any and all assets, furniture, chemicals and other materials and documents at the Xxxxxxx Facility which are not included in the Acquired Assets or the Par Equipment, including, without limitation, the Inventory and the assets set forth on Exhibit D; (xi) Xxxxxx and Par shall execute and deliver to the Purchaser the Termination of any class Lease attached hereto as Exhibit N (the "Termination of voting securities Lease"); Xxxxx Facility Lease -------------------- (xii) Xxxxxx shall provide the Purchaser with the Assignment and Assumption of Tenant's Interest in Lease executed by Xxxxxx in the form attached hereto as Exhibit O (the "Assignment and Assumption of Tenant's Interest in Lease"); (xiii) Xxxxxx shall, on the earlier of the Company First Closing Date or to otherwise control March 19, 2004, remove any and all assets, furniture, chemicals and other materials and documents at the CompanyXxxxx Facility which are not included in the Acquired Assets or the Par Equipment, then including, without limitation, the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (Inventory and the Initial Purchase Price assets set forth on Exhibit D; (xiv) Xxxxxxx Corporation shall provide the Purchaser with the Consent to Assignment of Lease executed by Xxxxxxx Corporation in form attached hereto as Exhibit P (the "Consent to Assignment of Lease"); (xv) Xxxxxxx Corporation shall provide the Purchaser with the Landlord Estoppel Letter executed by Xxxxxxx Corporation in form attached hereto as Exhibit Q (the "Xxxxx Landlord Estoppel Letter"); (xvi) Xxxxxx shall provide the Purchaser with the Tenant Estoppel Letter executed by Xxxxxx in the form attached hereto as Exhibit R (the "Xxxxx Tenant Estoppel Letter"); (xvii) Such other real estate closing deliveries as may be reduced accordinglyrequired by the title company in connection with the transactions relating to the Xxxxx Facility (the "Other Xxxxx Real Estate Documents"); Assignment and Assumption of Service Contracts ---------------------------------------------- (xviii) such The Seller shall assign, and the Purchaser shall assume, the Assumed Contracts pursuant to the form of assignment attached hereto as Exhibit G or in another form of assignment acceptable to the Purchaser. The Parties acknowledge that the Investor will not be deemed for purposes of the BHC Act or the CBC Act there are no Service Contracts relating to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesComputer Systems.

First Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) or waiver of the conditions to closing set forth in Section 1.2(c1.5(a), (c) and (d), the first closing of the purchase and sale by the Purchaser of the First Closing Shares pursuant to this Agreement (the "“First Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), held at the offices of SkaddenDebevoise & Xxxxxxxx LLP, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, at 10:00 a.m. New York time on the third business day after the satisfaction or waiver of the latest to occur of the conditions set forth in Section 1.5(a), (c) and (d) (other than those conditions that by their nature are to be satisfied by actions taken at the First Closing, but subject to their satisfaction) or at such other date date, time and place as the Company and the Purchaser agree; provided, that, if the last condition to be satisfied or location as agreed by waived prior to the parties in writing. The date occurrence of the First Closing (other than conditions that by their nature are to be satisfied by actions taken at the First Closing) is the condition set forth in Section 1.5(a)(2), then the First Closing shall be held on the earlier to occur of (x) one business day after the date on which any applicable waiting periods (including any extension thereof) prescribed by Competition Laws referred to as in Section 1.5(a)(2) shall have been required to expire or be terminated and (y) if such expiration or termination occurs on any other date, twelve (12) business days after the "date of such expiration or termination (such date, the “First Closing Date”)." (2b) Subject to the satisfaction or waiver at or prior to the First Closing of the applicable conditions described to the First Closing in Section 1.2(c)1.5, at the First Closing, : (1) the Company will deliver to the Investor one or more Purchaser (i) certificates bearing representing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock First Closing Shares, (ii) the "Initial Purchased Shares") against payment Shareholders’ Agreement, duly executed by the Investor of $7,250,000 Company, (iii) the "Initial Purchase Price"Registration Rights Agreement, duly executed by the Company and (iv) all other documents, instruments and writings required to be delivered by wire transfer of immediately available United States funds the Company to the Purchaser at or prior to the First Closing pursuant to this Agreement or otherwise required in connection herewith; and (2) the Purchaser will deliver or cause to be delivered (i) to a bank account designated by the Company; providedCompany in writing at least two (2) business days prior to the First Closing Date, that the First Closing Purchase Price by wire transfer of immediately available funds, (ii) the Shareholders’ Agreement, duly executed by the Purchaser, (iii) the Registration Rights Agreement, duly executed by Purchaser, and (iv) all other documents, instruments and writings required to be delivered by the Purchaser to the Company at or prior to the First Closing pursuant to this Agreement or otherwise required in connection herewith. (c) Notwithstanding anything to the contrary herein, if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956First Closing has not occurred by October 31, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company2014, then the Investor First Closing shall purchase not occur until such time as the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSecond Closing occurs.

First Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(c), the first closing (the "First Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last conditions set forth in Section 4.2(a) and Section 4.2(b) below, the completion of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date purchase and sale of the First Closing is referred to as Shares and the "First Closing Warrants (the “First Closing”) shall occur no later than the second business day after the execution of this Agreement by the Investors and the Company (the “First Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(c”), at in accordance with Rule 15c6-l promulgated under the First Closing, the Company will deliver to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Securities Exchange Act of 19561934, as amended (the "BHC “Exchange Act"”). At the First Closing, (a) the Company shall cause Xxxxx Fargo Shareowner Services, the Company’s “Transfer Agent”, to deliver to each Investor the number of First Closing Shares set forth on the Signature Page of such Investor registered in the name of such Investor or, if so indicated on the Investor Questionnaire of such Investor attached hereto as Exhibit A, in the name of a nominee designated by such Investor, (b) the Company shall cause to be delivered to such Investor a First Closing Warrant for the number of First Closing Warrant Shares set forth on the Signature Page of such Investor and (c) the aggregate purchase price for the First Closing Shares and the First Closing Warrants being purchased by such Investor at such First Closing as set forth on the Signature Page of such Investor will be delivered by or on behalf of such Investor to the Company. Notwithstanding anything contained herein to the contrary, if the First Closing shall not have occurred on or prior to the date that is two (2) business days after the execution of this Agreement by the Investors and the Company (unless the First Closing shall not have occurred due to a breach by an Investor of the terms hereof), or then the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares Investors may terminate this Agreement without further liability of any class of voting securities of kind to the Company or to otherwise control the CompanyInvestors, then the Investor provided that (i) any such termination of this Agreement shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more relieve any party hereto of any class liability in respect of voting securities any breach hereof arising prior to the termination of this Agreement (or following such termination with respect to any provisions that survive the Company or to otherwise control the Company. Any determinations under the proviso termination of the immediately preceding this Agreement), and (ii) this last sentence of Section 4.1(a) and Sections 2.3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 23 and 24 shall take into account the appropriate regulatory treatment of convertible securitiessurvive any such termination.

First Closing. (1) Subject The obligation of each Buyer hereunder to purchase the satisfaction (or, where permissible, waiver) of Notes and the conditions to closing set forth in Section 1.2(c), the first closing (the "First Closing") shall take place Shares at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date of the First Closing is referred subject to as the "satisfaction, at or before the First Closing Date.", of each of the following conditions: (2a) Subject Each Company, as applicable, shall have executed and delivered to each Buyer (i) the Notes (in such denominations as such Buyer shall have requested prior to the satisfaction of the conditions described in Section 1.2(c), First Closing) being purchased by such Buyer at the First ClosingClosing pursuant to this Agreement, (ii) each of the Company will deliver other Transaction Documents, and (iii) certificates representing the Shares (in such denominations as such Buyer shall have requested prior to the Investor one or more certificates bearing First Closing) being purchased by such Buyer at the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock First Closing pursuant to this Agreement. (b) Parent shall have delivered to such Buyer a letter from Parent’s transfer agent certifying the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at outstanding as of a purchase price date within five (5) days of $4.00 per share the First Closing Date. (c) Parent shall have executed and delivered to the Agent the Registration Rights Agreement. (d) Parent shall have delivered to Agent a copy of the CCSI Acquisition Documents, certified by an officer of Parent as being a true, complete and accurate copy of the CCSI Acquisition Documents and Agent shall have received a subordination agreement executed by Xxxx Xxxxxxx (as the same may be amended from time to time, the “CCSI Seller Subordination Agreement”) in form attached hereto as Exhibit O. (e) Each of the Companies shall have executed and delivered or caused to be delivered to the Agent, the Fee Letter. (f) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the Security Agreement. (g) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the deposit account control agreements and securities account control agreements, in form and substance satisfactory to the Agent, executed by each Company and the Initial Purchase Price applicable banks. (h) Parent shall have delivered to the Agent, the letter agreements, in form and substance satisfactory to the Agent, executed by the officers of Parent. (i) The Agent shall have received the opinions of Outside Legal Counsel, dated the First Closing Date, in substantially the forms of Exhibit H attached hereto. (j) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the Funds Flow Letter executed and delivered by each Company. (k) The Companies shall have executed and delivered a Borrowing Base Certificate to the Agent, which shall be reduced accordinglyin form and substance satisfactory to the Agent. (l) Parent shall have delivered to the Agent a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit I attached hereto, which instructions shall have been delivered to and acknowledged in writing by Parent’s transfer agent. (m) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate evidencing the formation or incorporation and good standing of such Company in such entity’s jurisdiction of formation or incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date reasonably proximate to the First Closing Date. (n) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate evidencing such Company’s qualification as a foreign corporation or other entity and good standing issued by the Secretary of State (or comparable office) of each jurisdiction in which such Company conducts business, as of a date reasonably proximate to the First Closing Date. (o) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate as to the fact that no action has been taken with respect to any merger, consolidation, liquidation or dissolution of such Company, or with respect to the sale of substantially all of its assets, nor is any such action pending or contemplated. (p) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certified copy of such Company’s certificate or articles of incorporation (or other applicable governing document), as certified by the Secretary of State (or comparable office) of such entity’s jurisdiction of formation or incorporation, reasonably proximate to the First Closing Date. (q) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate, executed by the secretary of such Company and dated the First Closing Date, as to (i) the resolutions consistent with Section 7.2 as adopted by such Company’s board of directors (or other governing body) in a form reasonably acceptable to the Agent, (ii) such that Company’s articles or certificate of incorporation (or other applicable governing document), (iii) such Company’s bylaws (or other applicable governing document), each as in effect at the Investor will First Closing, and (iv) no action having been taken by such Company or its stockholders, directors or officers in contemplation of any amendments to items (i), (ii), or (iii) listed in this Section 5.1(q), as certified in the form attached hereto as Exhibit J. (r) The Common Stock (I) shall be designated for quotation by the Principal Market and (II) shall not be deemed for purposes have been suspended, as of the BHC Act First Closing Date, by the SEC or the CBC Act to own 10% Principal Market from quotation nor shall suspension by the SEC or more of any class of voting securities the Principal Market have been threatened, as of the Company First Closing Date, either (A) in writing by the SEC or to otherwise control the Company. Any determinations under Principal Market or (B) by falling below the proviso minimum maintenance requirements of the immediately preceding sentence Principal Market. (s) Each of the Companies shall take into account have obtained all governmental, regulatory and third party consents and approvals, if any, necessary for the sale of the Securities at the First Closing. (t) Each of the Companies shall have obtained and delivered to the Agent searches of UCC filings in the jurisdictions of formation or incorporation of each of the Companies, the jurisdiction of the chief executive offices of each of the Companies and each jurisdiction where any Collateral (as defined in the Security Agreement) is located or where a filing would need to be made in order to perfect the Agent’s and Holders’ security interest in the Collateral, copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens. (u) Each of the Companies shall have executed and delivered to the Agent, or authorized the filing of, UCC financing statements for each appropriate regulatory treatment jurisdiction as is necessary, in the Agent’s and Holders’ sole discretion, to perfect the Agent’s and Holders’ security interest in the Collateral. (v) Agent shall have received evidence satisfactory to Agent that, upon the issuance of convertible securitiesthe initial Revolving Notes, the CCSI Acquisition shall close in accordance with the terms of the CCSI Acquisition Documents. (w) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent such landlord waivers, collateral access agreements or other similar documents as the Agent may request. (x) Each of the Companies shall have delivered, or caused to be delivered to the Agent, certificates evidencing any Pledged Equity (as defined in the Security Agreement) pledged to the Agent pursuant to the Security Agreement, together with duly executed in blank, undated stock or unit powers attached thereto. (y) The Agent shall have received a certification from the chief financial officer of the Parent in form and substance satisfactory to the Agent, supporting the conclusions that after giving effect to the transactions contemplated by the Transaction Documents the Parent and each of its Subsidiaries are not Insolvent. (z) Since March 31, 2008, there shall have been no change which has had or could reasonably be expected to have a Material Adverse Effect. (aa) The Agent shall have received certificates from the Companies’ insurance broker or other evidence satisfactory to it that all insurance required to be maintained pursuant to this Agreement is in full force and effect, together with endorsements naming the Agent, for the benefit of the Holders, as additional insured and lender's loss payee thereunder. (bb) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, a payoff letter, in a form and substance satisfactory to the Agent, executed and delivered by the Companies and Xxxxx Fargo Bank, N.A.. (cc) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the Post-Closing Obligations Letter, substantially in form of Exhibit L attached hereto, executed and delivered by each Company. (dd) The representations and warranties of each Company shall be true and correct as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and each Company shall have performed, satisfied and complied in all respects with the covenants, agreements and conditions required by the Transaction Documents to be performed, satisfied or complied with by each Company at or prior to the First Closing Date. The Agent shall have received certificates, executed by the Chief Executive Officer of each Company, dated the First Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Agent, in the form attached hereto as Exhibit K. (ee) Each of the Companies shall have executed and/or delivered to the Agent such other documents relating to the transactions contemplated by this Agreement as the Agent or its counsel may reasonably request. (ff) No Event of Default (or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing or would result from the issuance of the Notes at the First Closing

First Closing. (1i) Subject to the satisfaction (or, where permissible, waiver) The consummation of the conditions to closing set forth purchase and sale of the Series B-1 12.75% Preferred Stock and Warrants in accordance with Section 1.2(c), ‎1.2(a) and the other transactions contemplated hereby at the first closing hereunder (the "“First Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of SkaddenXxxxxx & Xxxxxxx LLP, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx 000 Xxxxxxxx Xxxxxx, Xxx XxxxXX, Xxx Xxxx Xxxxxxxxxx, X.X. 00000, at 10:00 a.m. New York City time, as promptly as practicable (but no more than three (3) Business Days) following the first date on which all conditions set forth in Section ‎4 hereof have been satisfied or waived (other than those conditions that by their nature are to be satisfied by actions taken at the First Closing), or at such other date or location as agreed by the parties in writing. The date of the First Closing is referred to time and place as the "First Closing DateCompany and the Investors shall mutually agree." (2ii) Subject to the satisfaction of the conditions described in Section 1.2(c), at At the First Closing, the Company will shall deliver to each Investor: (A) a certificate or certificates representing the shares of Series B-1 12.75% Preferred Stock and Warrants to be issued to such Investor at the First Closing, as set forth in Section ‎1.2(a) of this Agreement, (B) each Transaction Document to be executed by the Company other than this Agreement, the Strategic Relationship Agreement and Transaction Documents to be executed at the Second Closing or the Third Closing, executed by the Company, and (C) such other documents and instruments to be delivered by the Company to the Investors at the First Closing pursuant to Section ‎4. (iii) At the First Closing, each Investor shall deliver to the Investor one or more certificates bearing Company: (A) the appropriate legends herein provided purchase price for and free and clear of all Liens representing 1,812,500 the shares of Common Series B-1 12.75% Preferred Stock (and Warrants issued to such Investor at the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") First Closing, by wire transfer of immediately available United States funds to a bank account designated or such other form of payment as may be approved by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates ; (B) each Transaction Document to be deemed for purposes of executed by such Investor other than this Agreement, the Bank Holding Company Act of 1956, as amended (Strategic Relationship Agreement and Transaction Documents to be executed at the "BHC Act"), Second Closing or the Change in Bank Control Act of 1978Third Closing, as amended executed by such Investor; and (the "CBC Act"), C) such other documents and instruments to own 10% or more of the outstanding shares of any class of voting securities of be delivered by such Investor to the Company or at the First Closing pursuant to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSection ‎4.

First Closing. (i) Subject to Section 5.4(c), during the period from the date of this Agreement until the earlier of the First Closing Date and any termination of this Agreement pursuant to ARTICLE IX, except (w) as permitted or expressly contemplated by this Agreement or any other First Closing Transaction Agreement, (x) as the Buyer Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law, or (z) as set forth on Schedule 5.4(a), the Seller Parent shall, and shall cause the Sellers and its other controlled Affiliates to: (A) conduct the Business in all material respects in the ordinary course of business consistent with past practice; and (B) maintain (1) the tangible Transferred Assets (including the Fab Assets) in their condition as of the date of this Agreement, ordinary wear and tear excepted, (2) insurance upon the Transferred Assets and First Closing Leased Real Properties in such amounts and of such kinds comparable to that in effect on the date of this Agreement, and (3) their respective commercial relationships with customers, suppliers and other Persons with whom any Seller deals in connection with the Business in the ordinary course. (ii) Subject to Section 5.4(c), during the satisfaction period from the date of this Agreement until the earlier of the First Closing Date and any termination of this Agreement pursuant to ARTICLE IX, except (w) as permitted under, contemplated by or approved under this Agreement or any other First Closing Transaction Agreement, (x) as the Buyer Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law or (z) as set forth on Schedule 5.4(a), the Seller Parent shall not, and shall cause the Sellers and its other controlled Affiliates not to, in connection with the Business and the Transferred Assets, take any of the following actions, as applicable: (A) dispose of, assign, transfer, lease, sublease, license (other than licenses to Transferred NAND Patents, Transferred SSD Patents and Dual Use Patents that are automatically granted to a third party pursuant to a written agreement executed prior to the date hereof between Seller Parent or one of its Affiliates and such third party), sell, convey, charge, pledge or subject to any Lien (other than any Permitted Liens and any Liens that would be removed prior to the Closing) any Transferred Asset or vary any rights, easements, security, consents, licenses or covenants over or in respect of them, other than assets sold or disposed of in the ordinary course of business consistent with past practice; (B) create, assume or incur, or agree to create, assume or incur, any obligation or liability (contractual or otherwise, including any Indebtedness) that would constitute an Assumed Liability except in the ordinary course of business; (C) acquire (x) any corporation, partnership, limited liability company, other business organization or division thereof or (y) any assets other than in the ordinary course of business; (D) initiate, settle, or offer or agree to settle, any Action relating to the Business or the Transferred Assets in excess of, individually or in the aggregate, $350,000,000; (E) other than in the ordinary course of business, release or waive the enforcement of any nondisclosure agreement, confidentiality agreement, noncompetition agreement, non-solicitation agreement or other restrictive covenant obligation of any current or former employee or independent contractor with whom any of the Sellers deal in connection with the conduct of the Business in the ordinary course; (F) terminate or serve any notice to terminate; surrender (or accept any surrender of); supplement, restate or amend; or waive any material rights under any Transferred Contract; (G) terminate or serve any notice to terminate; surrender (or accept any surrender of); supplement, restate or amend; fail to renew; fail to pay any amounts payable; or waive any material rights under any Permit or certifications in respect the Transferred Assets and necessary for the conduct of the Business; (H) other than increases to compensation or benefits (i) in the ordinary course of business consistent with past practice (including in connection with promotions), (ii) as may be required by an applicable Law or Labor Agreement or the terms of an Employee Plan, or (iii) pursuant to any agreement or other arrangement entered into with any Business Employee after the date hereof relating to any stay, retention, transaction or other similar bonus or award in respect of any Transaction where the Liability for such bonus or award is a Retained Liability, increase, individually or in the aggregate, the salary, bonus or other compensation or benefits payable to any Business Employee; (I) enter into, adopt, amend or terminate any OpCo Employee Plan; provided that, for the avoidance of doubt, the Seller Parent or its Affiliates shall continue to provide compensation and benefits for the Business Employees under its compensation and benefits programs (other than OpCo Employee Plans); (J) except as may be required by an applicable Law or Labor Agreement or the terms of an Employee Plan as in effect as of the date of this Agreement, (i) other than as permitted by Section 5.4(a)(ii)(H), enter into, adopt, amend or terminate any Employee Plan (or any plan or agreement that would be an Employee Plan if in effect on the date hereof), other than the adoption, entry into, amendment or termination of any Employee Plan that (1) is not targeted only to Business Employees or (2) would not result in an increase in Liability to the Buyer Parent, Buyer or their Affiliates; (ii) transfer the employment of any Business Employee such that the employee would no longer meet the criteria necessary to qualify as a Business Employee other than as a result of such Business Employee (other than a Key Employee or a Senior Business Employee who has received and accepted an offer of employment from Buyer Parent or one of its Affiliates, except with the consent of the general manager of the employer of such NAND Business Employee or the general manager of the employer of such SSD Business Employee, as applicable) applying and being selected in a competitive process not targeted at Business Employees; (iii) terminate the employment of any Business Employee other than for cause or, where permissiblefor those Business Employees other than any Key Employee and Senior Business Employee who has received and accepted an offer of employment from Buyer Parent or one of its Affiliates, waiverin the ordinary course of business consistent with past practices; or (iv) hire any individual for the NAND Business or the SSD Business who would be a Business Employee (other than an Objecting Employee) if such individual was employed by the Sellers or their Affiliates as of the conditions date hereof, or transfer the employment of any individual employed by the Sellers or their Affiliates such that the individual would become a Business Employee, in either case, other than a Core Division NAND Employee or a Core Division SSD Employee as contemplated by Section 6.1(a) or to closing replace any Business Employee (except for the replacement of any Key Employee) whose employment terminates voluntarily or terminates or transfers in accordance with clauses (ii) or (iii) hereof and with compensation and benefits substantially similar to those provided to similarly situated Business Employees; (K) to the extent relating to the Business Employees, (i) enter into any negotiation in respect of, enter into or amend any Labor Agreement or (ii) recognize or certify any Employee Representative Body; (L) to the extent relating to the Business Employees, effect or permit a plant closing, mass layoff or similar event under the WARN Act; (M) except as necessary in the ordinary conduct of the Business consistent with past practice, (1) grant or acquire, agree to grant to or acquire from any Person, or, except as set forth in Section 1.2(c5.4(a)(ii)(O), dispose of or permit to lapse any rights to any material Intellectual Property Rights of the first Business, or disclose or agree to disclose to any Person, other than representatives of the Buyer Parent, any Trade Secret, or (2) compromise, settle or agree to settle, or consent to judgment in, any one or more Actions or institute any Action concerning any material Intellectual Property Rights of the Business; (N) grant, modify or terminate any rights, or enter into any Contract, that would prevent, restrict or conflict with the entry into or the grant of any rights or licenses under, or the performance of, any of the terms of the IP License Agreements; (O) except in the ordinary course of business consistent with past practice, fail to (1) pay any annuity, maintenance or other fee or file any document in connection with granted patents, registered trademarks, and registered copyrights included in the Transferred IP or (2) diligently prosecute and respond to any office action when due (subject to extension of such due date, as permitted by applicable Law) in connection with any pending patent application included in the Transferred IP; provided that the Seller Parent may abandon a patent application after it has been finally rejected or when the next step for that application is to appeal a rejection; (P) incorporate, embed, combine, link to, or distribute any Open Source Materials in a manner that would subject any proprietary or Business Software included in the Transferred Technology to any Copyleft License; (Q) write down or write up (or fail to write down or write up in accordance with GAAP consistent with past practice) the value of any inventories or revalue any of the Transferred Assets, in all cases other than in the ordinary course of business and in accordance with GAAP; (R) order raw materials or other supplies for the manufacture of Products in quantities that are not in the ordinary course of business and consistent with the manufacturing needs of the Business; (S) unless required by applicable Law, (I) change any material Tax election, (II) make any material Tax election (to the extent making such election requires the filing of a Tax Return), (III) file any Tax Return other than in the ordinary course of business consistent with past practices, or any amended Tax Return, or (IV) apply for, obtain, or enter into any Tax ruling, closing agreement or other similar Contract, agreement or arrangement with a Governmental Entity if, in the case of the foregoing clauses (I) - (IV), such action would reasonably be expected to increase the "First liability of the Buyer Parent or any of its Affiliates (including, after the Second Closing", OpCo) for Taxes that are not Retained Tax Liabilities; (T) sell, dispose, encumber or pledge any of the equity interests of OpCo or grant options, warrants, convertible or exchangeable securities, subscriptions, rights, stock appreciation rights, calls or commitments of any kind with respect to such equity interests, or grant any rights to purchase or acquire equity interests of OpCo; or (U) agree or commit to take any action described in this Section 5.4(a)(ii). (iii) Notwithstanding the foregoing, nothing in this Section 5.4(a) shall take place at a time and date as shall be agreed upon by prohibit or otherwise restrict in any way the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver operation of the last business of the conditions specified Seller Parent or any of its Subsidiaries, except solely with respect to the conduct of the Business, the Transferred Assets, the Assumed Liabilities or the Transferred Employees as expressly provided in this Section 1.2(c5.4(a), and nothing contained herein shall give the Buyer Parent or any Buyer any right to manage, control, direct or be involved in the management of the Seller Parent or any Seller at any time or the offices management of Skadden(A) the SSD Business, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date of the First Closing is referred to as Transferred Assets, the "First Closing Date." (2) Subject Assumed Liabilities or the Transferred SSD Employees prior to the satisfaction of First Closing or (B) the conditions described in Section 1.2(c), at the First ClosingNAND Business, the Company will deliver Second Closing Transferred Assets, the Second Closing Assumed Liabilities or the Transferred NAND Employees prior to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock (the "Initial Purchased Shares") against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSecond Closing.

First Closing. (1) Subject The obligation of the Buyer hereunder to -------------- purchase the First Convertible Debenture and the First Warrants at the Closing is subject to the satisfaction (orsatisfaction, where permissibleat or before the Closing Date, waiver) of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion: (i) The Company shall have executed the Transaction Documents and delivered the same to closing set forth in Section 1.2(c), the first closing Buyer. (the "First Closing"ii) shall take place at a time and date as The Common Stock shall be agreed authorized for quotation on the OTCBB, trading in the Common Stock shall not have been suspended for any reason, and all the Conversion Shares issuable upon by the parties hereto, but in no event later than the third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(c), at the offices of Skadden, Arps, Slate, Mxxxxxx & Fxxx LLP located at 4 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date conversion of the First Convertible Debenture shall have been approved by the OTCBB. (iii) The representations and warranties of the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Closing is referred Date as though made at that time (except for representations and warranties that speak as of a specific date) and the Company shall have performed, satisfied and complied in all material respects with the covenants, agreements and conditions required by this Agreement to as be performed, satisfied or complied with by the "First Company at or prior to the Closing Date. If requested by the Buyer, the Buyer shall have received a certificate, executed by the President of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer including, without limitation an update as of the Closing Date regarding the representation contained in Section 3(c) above." (2iv) Subject The Company shall have executed and delivered to the Buyer the First Convertible Debenture and the First Warrants. (v) The Buyer shall have received an opinion of counsel in a form satisfactory to the Buyer. (vi) The Company shall have provided to the Buyer a certificate of good standing from the Secretary of State from the state in which the Company is incorporated. (vii) The Company shall have delivered to the Escrow Agent the Escrow Shares. (viii) The Company shall have provided to the Buyer an acknowledgement, to the satisfaction of the conditions described Buyer, from the Company's certified public accountant as to its ability to provide all consents required in Section 1.2(c)order to file a registration statement in connection with this transaction. (ix) The Company shall have reserved out of its authorized and unissued Common Stock, at solely for the purpose of effecting the conversion of the First ClosingConvertible Debenture, the Company will deliver to the Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 1,812,500 shares of Common Stock sufficient to effect the conversion of all of such First Convertible Debenture. (the "Initial Purchased Shares"x) against payment by the Investor of $7,250,000 (the "Initial Purchase Price") by wire transfer of immediately available United States funds The Irrevocable Transfer Agent Instructions shall have been delivered to a bank account designated and acknowledged in writing by the Company; provided, that if the Initial Purchased Shares would cause the Investor or its Affiliates to be deemed for purposes of the Bank Holding Company Act of 1956, as amended (the "BHC Act"), or the Change in Bank Control Act of 1978, as amended (the "CBC Act"), to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the Investor shall purchase the highest number of shares of Common Stock at a purchase price of $4.00 per share (and the Initial Purchase Price shall be reduced accordingly) such that the Investor will not be deemed for purposes of the BHC Act or the CBC Act to own 10% or more of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities's transfer agent.