Common use of Sale and Delivery Clause in Contracts

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon Pursuant to a Pricing Agreement applicable to any Designated Securities, and upon the basis of the representations and warranties, and subject to the conditions set forth, in this Agreement, the Company will agree to sell to the several Underwriters named in such Pricing Agreement and such Underwriters will agree to purchase from the Company, severally and not jointly, at the respective purchase prices set forth in the Pricing Agreement, plus accrued interest, if any, from the date set forth therein to the date of payment and delivery: (i) the principal amounts of Debt Securities set forth opposite their names in Schedule I to such Pricing Agreement, less their respective amounts of the Contract Debt Securities (as defined below), if any, as determined as provided below; or (ii) Warrants to purchase the principal amounts of Warrant Debt Securities set forth opposite their names in Schedule I to such Pricing Agreement, less their respective amounts of the Contract Warrant Securities (as defined below), if any, as determined as provided below. Debt Securities and, if applicable, Warrants to be purchased pursuant to delayed delivery contracts are referred to as “Contract Debt Securities” and “Contract Warrants,” respectively, and collectively as the “Contract Securities.” (b) The Company may specify in the Pricing Agreement applicable to any Designated Securities that the Company thereby grants to the Underwriters the right (an “Option”) to purchase at their election up to the aggregate principal amount of Optional Securities specified in such Pricing Agreement, on the same terms as the Firm Securities plus accrued interest, if any, from the First Time of Delivery (as defined below) to, but excluding, the Time of Delivery of such Optional Securities, for the sole purpose of covering over-allotments in the sale of Firm Securities. Any such election to purchase Optional Securities may be exercised by written notice from the Representatives to the Company, given within a period specified in the Pricing Agreement, setting forth the aggregate principal amount of Optional Securities to be purchased and the date on which such Optional Securities are to be delivered, as determined by the Representatives but in no event earlier than the First Time of Delivery or, unless the Representatives and the Company otherwise agree in writing, earlier than or later than the respective number of business days after the date of such notice set forth in such Pricing Agreement. (c) The aggregate principal amount of Optional Securities to be added to the aggregate principal amount of Firm Securities to be purchased by each Underwriter as set forth in Schedule I to the Pricing Agreement applicable to such Designated Securities shall be, in each case, the aggregate principal amount of Optional Securities that the Company has been advised by the Representatives have been attributed to such Underwriter. If the Company has not been so advised, the aggregate principal amount of Optional Securities to be so added shall be, in each case, that aggregate principal amount of Optional Securities which the aggregate principal amount of Firm Securities to be purchased by such Underwriter under such Pricing Agreement bears to the aggregate principal amount of Firm Securities (rounded as the Representatives may determine to the nearest $1,000). The aggregate principal amount of Designated Securities to be purchased by all the Underwriters pursuant to such Pricing Agreement shall be the aggregate principal amount of Firm Securities set forth in Schedule I to such Pricing Agreement plus the aggregate principal amount of Optional Securities which the Underwriters elect to purchase. (d) (i) If so indicated in the applicable Pricing Agreement, the Company may authorize the Underwriters to solicit offers to purchase Contract Securities on the terms and subject to the conditions set forth herein, therein pursuant to delayed delivery contracts (“Delayed Delivery Contracts”). Delayed Delivery Contracts are to be with institutional investors approved by the Company and conditioned upon described in the consummation Prospectus. The aggregate principal amount of Contract Debt Securities and the aggregate principal amount of Warrant Debt Securities for which Contract Warrants are exercisable shall not exceed the respective amounts set forth in the Pricing Agreement. As of the Initial Closing, in reliance upon the representations and warranties applicable Time of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial ClosingDelivery, the Company shall issue, sell and deliver will pay to the Management InvestorRepresentatives as compensation, and for the Management Investor shall purchase from accounts of the CompanyUnderwriters, [_______] (_____) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined fee specified in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% Pricing Agreement in respect of all Contract Securities. The Underwriters will not have any responsibility in respect of the aggregate Purchase Price for all validity or the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); andperformance of Delayed Delivery Contracts. (ii) an amount equal If the Designated Securities are Debt Securities, the deduction for the Contract Debt Securities referred to 50% of above shall become effective upon the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by execution and delivery by the Management Investor Company and the several institutional investors of the Delayed Delivery Contracts. Such deduction for each Underwriter shall be in the amount which shall bear the same proportion to the Company of a 6.5% promissory note having an original total principal amount equal of Contract Debt Securities as the principal amount of Debt Securities set forth opposite its name in such Pricing Agreement bears to the aggregate principal amount of Debt Securities set forth in such amount Pricing Agreement. (iii) If the "Note")Designated Securities are Warrants and Debt Warrant Securities, the form of which Note is attached hereto as Exhibit A. (c) The purchase deduction for the Contract Warrants referred to above shall become effective upon the execution and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified delivery by the Company at least two Business Days prior and the several institutional investors of the Delayed Delivery Contracts. Such deduction for each Underwriter shall be in the amount which shall bear the same proportion to the Initial Closing Date; (B) total principal amount of Debt Warrant Securities for which Contract Warrants are exercisable as the Note; and (C) a pledge agreement (principal amount of Debt Warrant Securities for which Warrants are exercisable as set forth opposite its name in such Pricing Agreement bears to the "Pledge aggregate principal amount of Debt Warrant Securities for which Warrants are exercisable as set forth in such Pricing Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management InvestorInvestor pursuant to the Rights Offering, and the Management Investor shall purchase from the CompanyCompany pursuant to the Rights Offer, [_______] an aggregate of $1,667,000 in stated value (_____at $1.00 per share) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")) at the price per share at which Series Preferred Stock is offered in the Rights Offer, subject to the terms and conditions of the Rights Offering. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A. (c) The purchase and sale of Shares by the Management Investor shall occur on the Initial Closing Date and, at the Initial Closingtime and place provided for in the Rights Offer, and at the closing of such purchase and sale of Shares by the Management Investor: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) any documents required to be submitted by a Company shareholder desiring to participate in the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing DateRights Offer; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] two hundred and fifty (_____250) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"). The number "250" in the preceding sentence shall be two hundred and fifty thousand (250,000) if the Recapitalization has been consummated prior to the Initial Closing Date). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows in cash at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) Company the Closing PaymentPurchase Price, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation Underwriter[s]; Closing. The [commitment of the Initial Closing, in reliance upon Underwriter] [several commitments of the Underwriters] to purchase Certificates shall be deemed to have been made on the basis of the representations and warranties of herein contained. Subject to the Management Investor hereinafter terms and conditions herein set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issueagrees to sell, sell or to cause one of its affiliates to sell, to [the] [each] Underwriter, [severally and deliver not jointly,] and [the] [each] Underwriter, [severally and not jointly,] agrees to the Management Investor, and the Management Investor shall purchase from the Company, at a purchase price equal to [(i)] ___% of the original stated amount of the [Class ___] Certificates [[,][and] (ii) ______% of the original stated amount of the [Class ____] Certificates] [[,][and] (iii) _____% of the original stated amount of the [Class ___] Notes] [and (iv) _____% of the original stated amount of the [Class ___] Notes] the respective original stated amount of [the] [each class of such] Securities set forth on Schedule A hereto opposite the name of such Underwriter[, plus any additional original stated amount of Securities which such Underwriter may be obligated to purchase pursuant to Section 10 hereof]. Delivery of, and payment of the purchase price for, the Securities shall be made at the office of Skadden, Arps, Slate Meagher & Flom LLP, Four Times Sxxxxx, New Xxxk, New Xxxx 00000, xx xx xxxx xxxxx xxxxx xx xxxxl be agreed upon by you and the Company, at 10:00 A.M. on _______] (_____) shares of Series C Preferred Stock , or such other time as shall be agreed upon by you and the Company (such shares of Series C Preferred Stock are time and date being referred to collectively herein as the "SharesClosing Time"). (b) The purchase price per share of Series C Preferred Stock . Payment shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, made in immediately available funds funds, payable to or upon the account specified by order of the Company Company. Such Certificates shall be in such denominations and registered in such names as you may request in writing at least two Business Days business days prior to the Initial Closing Date; (B) Time. The Certificates will be made available for examination and packaging by you in New York, New York not later than 10:00 A.M. on the Note; and (C) a pledge agreement (business day next preceding the "Pledge Agreement") substantially Closing Time. The Certificates to be so delivered will initially be represented by one or more Certificates registered in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other thingsname of Cede & Co., the Management Investor's obligations under the Note shall be secured by a pledge nominee of (i) the Shares, (ii) the shares DTC. The interests of Common Stock that may be acquired upon conversion beneficial owners of the Shares (Certificates will be represented by book entries on the "Underlying Common Shares"), records of DTC and (iii) certain other collateral described thereinparticipating members thereof.

Sale and Delivery. (a) Upon Pursuant to a Pricing Agreement applicable to any Designated Securities, and upon the basis of the representations and warranties, and subject to the conditions set forth, in this Agreement, the Company will agree to sell to the several Underwriters named in such Pricing Agreement and such Underwriters will agree to purchase from the Company, severally and not jointly, at the respective purchase prices set forth in the Pricing Agreement, plus accrued interest, if any, from the date set forth therein to the date of payment and delivery: (i) the principal amounts of Debt Securities set forth opposite their names in Schedule I to such Pricing Agreement, less their respective amounts of the Contract Debt Securities (as defined below), if any, as determined as provided below; or (ii) Warrants to purchase the principal amounts of Warrant Debt Securities set forth opposite their names in Schedule I to such Pricing Agreement, less their respective amounts of the Contract Warrant Securities (as defined below), if any, as determined as provided below. Debt Securities and, if applicable, Warrants to be purchased pursuant to delayed delivery contracts are referred to as “Contract Debt Securities” and “Contract Warrants,” respectively, and collectively as the “Contract Securities.” (b) The Company may specify in the Pricing Agreement applicable to any Designated Securities that the Company thereby grants to the Underwriters the right (an “Overallotment Option”) to purchase at their election up to the aggregate principal amount of Optional Securities specified in such Pricing Agreement, on the same terms as the Firm Securities, for the sole purpose of covering over-allotments in the sale of the Firm Securities. Any such election to purchase Optional Securities may be exercised by written notice from the Representatives to the Company, given within a period specified in the Pricing Agreement, setting forth the aggregate principal amount of Optional Securities to be purchased and the date on which such Optional Securities are to be delivered, as determined by the Representatives but in no event earlier than the First Time of Delivery or, unless the Representatives and the Company otherwise agree in writing, earlier than or later than the respective number of business days after the date of such notice set forth in such Pricing Agreement. (c) The aggregate principal amount of Optional Securities to be added to the aggregate principal amount of Firm Securities to be purchased by each Underwriter as set forth in Schedule I to the Pricing Agreement applicable to such Designated Securities shall be, in each case, the aggregate principal amount of Optional Securities that the Company has been advised by the Representatives have been attributed to such Underwriter. If the Company has not been so advised, the aggregate principal amount of Optional Securities to be so added shall be, in each case, that aggregate principal amount of Optional Securities which the aggregate principal amount of Firm Securities to be purchased by such Underwriter under such Pricing Agreement bears to the aggregate principal amount of Firm Securities (rounded as the Representatives may determine to the nearest $1000). The aggregate principal amount of Designated Securities to be purchased by all the Underwriters pursuant to such Pricing Agreement shall be the aggregate principal amount of Firm Securities set forth in Schedule I to such Pricing Agreement plus the aggregate principal amount of Optional Securities which the Underwriters elect to purchase. (d) (i) If so indicated in the applicable Pricing Agreement, the Company may authorize the Underwriters to solicit offers to purchase Contract Securities on the terms and subject to the conditions set forth herein, therein pursuant to delayed delivery contracts (“Delayed Delivery Contracts”). Delayed Delivery Contracts are to be with institutional investors approved by the Company and conditioned upon described in the consummation Prospectus. The aggregate principal amount of Contract Debt Securities and the aggregate principal amount of Warrant Debt Securities for which Contract Warrants are exercisable shall not exceed the respective amounts set forth in the Pricing Agreement. As of the Initial Closing, in reliance upon the representations and warranties applicable Time of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial ClosingDelivery, the Company shall issue, sell and deliver will pay to the Management InvestorRepresentative as compensation, and for the Management Investor shall purchase from accounts of the CompanyUnderwriters, [_______] (_____) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined fee specified in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% Pricing Agreement in respect of all Contract Securities. The Underwriters will not have any responsibility in respect of the aggregate Purchase Price for all validity or the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); andperformance of Delayed Delivery Contracts. (ii) an amount equal If the Designated Securities are Debt Securities, the deduction for the Contract Debt Securities referred to 50% of above shall become effective upon the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by execution and delivery by the Management Investor Company and the several institutional investors of the Delayed Delivery Contracts. Such deduction for each Underwriter shall be in the amount which shall bear the same proportion to the Company of a 6.5% promissory note having an original total principal amount equal of Contract Debt Securities as the principal amount of Debt Securities set forth opposite its name in such Pricing Agreement bears to the aggregate principal amount of Debt Securities set forth in such amount Pricing Agreement. (iii) If the "Note")Designated Securities are Warrants and Debt Warrant Securities, the form of which Note is attached hereto as Exhibit A. (c) The purchase deduction for the Contract Warrants referred to above shall become effective upon the execution and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified delivery by the Company at least two Business Days prior and the several institutional investors of the Delayed Delivery Contracts. Such deduction for each Underwriter shall be in the amount which shall bear the same proportion to the Initial Closing Date; (B) total principal amount of Debt Warrant Securities for which Contract Warrants are exercisable as the Note; and (C) a pledge agreement (principal amount of Debt Warrant Securities for which Warrants are exercisable as set forth opposite its name in such Pricing Agreement bears to the "Pledge aggregate principal amount of Debt Warrant Securities for which Warrants are exercisable as set forth in such Pricing Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon Subject to the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, (i) the Company agrees to issue and for sell to each of the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase, at a purchase price described in Section 2(b)of $______ per Security, at the Initial Closingplus accrued interest, the Company shall issueif any, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____, 1997 to the Time of Delivery hereunder, the number of Securities set forth opposite the name of such Underwriter in Schedule I hereto, and (ii) shares in the event and to the extent that the Underwriters shall exercise the election to purchase Optional Securities as provided below, the Company agrees to issue and sell to each of Series C Preferred Stock the Underwriters, and each of the Underwriters agrees, severally and not jointly, to purchase, at the same purchase price set forth in clause (i) of this Section 2(a), that number of the Optional Securities as to which such shares election shall have been exercised determined by multiplying such number of Series C Preferred Stock Optional Securities by a fraction, the numerator of which is the maximum number of Optional Securities which such Underwriter is entitled to purchase as set forth opposite the name of such Underwriter in Schedule I hereto and the denominator of which is the maximum number of Optional Securities which all of the Underwriters are referred entitled to collectively herein purchase hereunder. The Company hereby grants to the Underwriters the right to purchase at their election up to 2,909,040 Optional Securities, at the purchase price set forth in clause (a) of the first paragraph of this Section 2, for the sole purpose of covering overallotments in the sale of Firm Securities. Any such election to purchase Optional Securities may be exercised by written notice from you to the Company, given within a period of 30 calendar days after the date of this Agreement, setting forth the aggregate number of Optional Securities to be purchased and the date on which such Optional Securities are to be delivered, as determined by you but in no event earlier than the "Shares")First Time of Delivery (as defined in Section 2(b) hereof) or, unless you and the Company otherwise agree in writing, earlier than two or later than ten business days after the date of such notice. (b) The Securities to be purchased by each Underwriter hereunder will be represented by one or more definitive global Securities in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company ("DTC") or its designated custodian. The Company will deliver the Securities to Xxxxxxx, Xxxxx & Co., for the account of each Underwriter, against payment by or on behalf of such Underwriter of the purchase price per share therefor by wire transfer of Series C Preferred Stock shall be equal Federal (same day) funds to a commercial bank account located in the United States and designated in writing at least forty-eight hours prior to the Purchase Price (as such term is defined in Time of Delivery by the Purchase Agreement) (as used hereinCompany to Xxxxxxx, Xxxxx & Co., by causing DTC to credit the "Purchase Price") and shall Securities to the account of Xxxxxxx, Xxxxx & Co. at DTC. The Company will cause the global certificates representing the Securities to be paid as follows made available to Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours prior to the Time of Delivery at the Initial Closing: (i) an amount equal to 50% office of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash DTC or its designated custodian (the "Closing PaymentDesignated Office"); . The time and date of such delivery and payment shall be, with respect to the Firm Securities, 9:30 a.m., New York City time, on _________, 1997 or such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing, and (ii) an amount equal , with respect to 50% the Optional Securities, 9:30 a.m., New York City time, on the date specified by Xxxxxxx, Xxxxx & Co. in the written notice given by Xxxxxxx, Xxxxx & Co. of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor Underwriters' election to purchase such Optional Securities, or such other time and date as Xxxxxxx, Xxxxx & Co. and the Company may agree upon in writing. Such time and date for delivery of a 6.5% promissory note having an original principal amount equal to such amount (the Firm Securities is herein called the "NoteFirst Time of Delivery"), such time and date of delivery of the form Optional Securities, if not the First Time of which Note Delivery, is attached hereto as Exhibit A.herein called the "Second Time of Delivery", and each such time and date for delivery is herein called a "Time of Delivery". (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, documents to be delivered at the Initial Closing: (iTime of Delivery by or on behalf of the parties hereto pursuant to Section 5 hereof, including the cross-receipt for the Securities and any additional documents requested by the Underwriters pursuant to Section 5(k) hereof, will be delivered at such time and date at the offices of Xxxxx & Xxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxx 00000- 0000 or such other location as Xxxxxxx, Xxxxx & Co. and the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, may agree in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement writing (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common SharesClosing Location"), and (iii) certain the Securities will be delivered at the Designated Office, all at the Time of Delivery. A meeting will be held at the Closing Location at 1:00 P.M., local time or at such other collateral described thereintime as Xxxxxxx, Xxxxx & Co. and the Company may agree in writing, on the New York Business Day next preceding the Time of Delivery, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 2, "New York Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close.

Sale and Delivery. (a) Upon The Company hereby agrees to sell to the terms several Underwriters, and each Underwriter, upon the basis of the representations and warranties herein contained, but subject to the conditions hereinafter stated, agrees, severally and not jointly, to purchase from the Company the respective numbers of Firm Shares set forth herein, and conditioned upon in Schedule I hereto opposite its name at $41.38735 a share (the consummation “Purchase Price”). On the basis of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forthcontained in this Agreement, and for the purchase price described in Section 2(b), at the Initial Closingsubject to its terms and conditions, the Company shall issue, agrees to sell and deliver to the Management InvestorUnderwriters the Additional Shares, and the Management Investor Underwriters shall purchase have the right to purchase, severally and not jointly, up to 2,280,000 Additional Shares at the Purchase Price, provided, however, that the amount paid by the Underwriters for any Additional Shares shall be reduced by an amount per share equal to any dividends declared by the Company and payable on the Firm Shares but not payable on such Additional Shares. You may exercise this right on behalf of the Underwriters in whole or from time to time in part by giving written notice not later than 30 days after the Company, [_______] (_____) shares date of Series C Preferred Stock (this Agreement. Any exercise notice shall specify the number of Additional Shares to be purchased by the Underwriters and the date on which such shares are to be purchased. Each purchase date must be at least one business day after the written notice is given and may not be earlier than the Closing Date nor later than ten business days after the date of Series C Preferred Stock such notice. Additional Shares may be purchased as provided in Section 2(c) hereof solely for the purpose of covering sales of shares in excess of the number of Firm Shares. On each day, if any, that Additional Shares are referred to collectively herein be purchased (an “Option Closing Date”), each Underwriter agrees, severally and not jointly, to purchase the number of Additional Shares (subject to such adjustments to eliminate fractional shares as you may determine) that bears the same proportion to the total number of Additional Shares to be purchased on such Option Closing Date as the "number of Firm Shares set forth in Schedule I hereto opposite the name of such Underwriter bears to the total number of Firm Shares"). (b) The purchase price per share Company is advised by you that the Underwriters propose to make a public offering of Series C Preferred Stock shall their respective portions of the Shares as soon after this Agreement has become effective as in your judgment is advisable. The Company is further advised by you that the Shares are to be equal offered to the Purchase Price public initially at $42.75000 a share (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase “Public Offering Price"”) and shall be paid as follows to certain dealers selected by you at a price that represents a concession not in excess of $0.76950 a share under the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.Public Offering Price. (c) The purchase and sale of Payment for the Firm Shares shall occur be made to the Company in Federal or other funds immediately available in New York City against delivery of such Firm Shares for the respective accounts of the several Underwriters at 10:00 a.m., New York City time, on November 22, 2011, or at such other time on the Initial same or such other date, not later than November 30, 2011, as shall be designated in writing by you. The time and date of such payment are hereinafter referred to as the “Closing Date and, at the Initial Closing: (i) Date.” Payment for any Additional Shares shall be made to the Company shall deliver to in Federal or other funds immediately available in New York City against delivery of such Additional Shares for the Management Investor certificates representing respective accounts of the Sharesseveral Underwriters at 10:00 a.m., duly endorsed for transferNew York City time, transferring to on the Management Investor good and marketable title to date specified in the corresponding notice described in Section 2(a) or at such Shares, free and clear of all liens and encumbrances; and (ii) other time on the Management Investor shall deliver to the Company: (A) the Closing Paymentsame or on such other date, in immediately available funds to the account specified any event not later than December 16, 2011, as shall be designated in writing by the Company at least two Business Days you. The Firm Shares and Additional Shares shall be registered in such names and in such denominations as you shall request in writing not later than one full business day prior to the Initial Closing Date or the applicable Option Closing Date;, as the case may be. The Firm Shares and Additional Shares shall be delivered to you on the Closing Date or an Option Closing Date, as the case may be, for the respective accounts of the several Underwriters. (Bd) The documents to be delivered on the Note; and (CClosing Date by or on behalf of the parties hereto pursuant to Section 7 hereof, including the cross receipt for the Shares and any additional documents requested by the Underwriters pursuant to Section 7(l) a pledge agreement hereof, will be delivered at such time and date at the offices of Debevoise & Pxxxxxxx LLP, New York, New York or such other location as the Representatives and the Company may agree in writing (the "Pledge Agreement") substantially “Closing Location”). A meeting will be held at the Closing Location at 1:00 p.m., New York City time or at such other time as the Representatives and the Company may agree in writing, on the form attached hereto as Exhibit BNew York Business Day next preceding the Closing Date, at which meeting the final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 2, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured is not a day on which banking institutions in New York are generally authorized or obligated by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described thereinlaw or executive order to close.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] two hundred and fifty (_____250) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"). The number "250" in the preceding sentence shall be two hundred and fifty thousand (250,000) if the Recapitalization has been consummated prior to the Initial Closing Date). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows in cash at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) Company the Closing PaymentPurchase Price, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____) 294,117 shares of Series C D Preferred Stock (such shares of Series C D Preferred Stock are referred to collectively herein as the "SharesSHARES")) at the price per share equal to $0.85. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a (i) $294.12 (the "Closing Payment") and (ii)a 6.5% recourse promissory note having an original principal amount equal to such amount the total purchase price of the Shares minus the Closing Payment (the "NoteNOTE"), the form of which Note is attached hereto as Exhibit EXHIBIT A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closingtime and place specified by the Company for such closing, which shall be not more than 60 days after the date hereof (the "CLOSING DATE"), and at the closing of such purchase and sale of Shares: (i) the Company shall deliver to the Management Investor certificates representing the SharesShares (the "Certificates"), duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge AgreementPLEDGE AGREEMENT") substantially in the form attached hereto as Exhibit EXHIBIT B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by the following: (i) a pledge of (ia) the Shares, (iib) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common SharesUNDERLYING COMMON SHARES"), and (iiic) certain other collateral described therein; and (ii) delivery of the Certificates.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____) 60,000 shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "SharesSHARES")) at the price per share equal to $1.00. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a (i) $30,000 (the "Closing Payment") and (ii)a 6.5% recourse promissory note having an original principal amount equal to such amount the total purchase price of the Shares minus the Closing Payment (the "NoteNOTE"), the form of which Note is attached hereto as Exhibit EXHIBIT A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closingtime and place specified by the Company for such closing, which shall be not more than 60 days after the date hereof (the "CLOSING DATE"), and at the closing of such purchase and sale of Shares: (i) the Company shall deliver to the Management Investor certificates representing the SharesShares (the "Certificates"), duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge AgreementPLEDGE AGREEMENT") substantially in the form attached hereto as Exhibit EXHIBIT B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by the following: (i) a pledge of (ia) the Shares, (iib) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common SharesUNDERLYING COMMON SHARES"), and (iiic) certain other collateral described therein; and (ii) delivery of the Certificates.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____) 100,000 shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "SharesSHARES")) at the price per share equal to $1.00. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a (i) $50,000 (the "Closing Payment") and (ii)a 6.5% recourse promissory note having an original principal amount equal to such amount the total purchase price of the Shares minus the Closing Payment (the "NoteNOTE"), the form of which Note is attached hereto as Exhibit EXHIBIT A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closingtime and place specified by the Company for such closing, which shall be not more than 60 days after the date hereof (the "CLOSING DATE"), and at the closing of such purchase and sale of Shares: (i) the Company shall deliver to the Management Investor certificates representing the SharesShares (the "Certificates"), duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge AgreementPLEDGE AGREEMENT") substantially in the form attached hereto as Exhibit EXHIBIT B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by the following: (i) a pledge of (ia) the Shares, (iib) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common SharesUNDERLYING COMMON SHARES"), and (iiic) certain other collateral described therein; and (ii) delivery of the Certificates.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____) 150,000 shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "SharesSHARES")) at the price per share equal to $1.00. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a (i) $150,000 (the "Closing Payment") and (ii)a 6.5% recourse promissory note having an original principal amount equal to such amount the total purchase price of the Shares minus the Closing Payment (the "NoteNOTE"), the form of which Note is attached hereto as Exhibit EXHIBIT A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closingtime and place specified by the Company for such closing, which shall be not more than 60 days after the date hereof (the "CLOSING DATE"), and at the closing of such purchase and sale of Shares: (i) the Company shall deliver to the Management Investor certificates representing the SharesShares (the "Certificates"), duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: : (A) the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; ; (B) the Note; and and (C) a pledge agreement (the "Pledge AgreementPLEDGE AGREEMENT") substantially in the form attached hereto as Exhibit EXHIBIT B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by the following: (i) a pledge of (ia) the Shares, (iib) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common SharesUNDERLYING COMMON SHARES"), and (iiic) certain other collateral described therein; and (ii) delivery of the Certificates.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] (_____) 100,000 shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")) at the price per share equal to $1.00. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of (i) $50,000 (the "Closing Payment") and (ii) a 6.5% recourse promissory note having an original principal amount equal to the total purchase price of the Shares minus the Closing Payment such amount (the "Note"), the form of which Note is attached hereto as Exhibit A. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closingtime and place specified by the Company for such closing, which shall be not more than 60 days after the date hereof (the "Closing Date"), and at the closing of such purchase and sale of Shares: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial 196 Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] two hundred and fifty (_____250) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"). The number "250" in the preceding sentence shall be two hundred and fifty thousand (250,000) if the Recapitalization has been consummated prior to the Initial Closing Date). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows in cash at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) Company the Closing PaymentPurchase Price, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. of the Shares to the Underwriters; Closing. (a) Upon On the terms basis of the representations and warranties herein contained, and subject to the terms and conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, the Company agrees to sell to each Underwriter, and for each Underwriter agrees, severally and not jointly, to purchase from the purchase price described Company the number of Shares set forth opposite the name of such Underwriter in Section 2(bSchedule A (the proportion which each Underwriter's share of the total number of the Shares bears to the total number of Shares is hereinafter referred to as such Underwriter's "underwriting obligation proportion"), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall a purchase from the Company, [_______] (_____) shares price of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")$24.03125 per share. (b) The Payment of the purchase price per share for and delivery of Series C Preferred Stock certificates in definitive form representing the Shares shall be equal to made at the Purchase Price (offices of Morgxx Xxxxxx & Xompany, Inc., 50 Fxxxx Xxxxxx, Xxxxxxx, Xxxxxxxxx 00000 xx at such other place as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased agreed upon by the Management Investor hereunder shall be paid in cash Company and you, at 10:00 a.m. E.D.T., on September 11, 1997 (the "Closing PaymentTime"); and (ii) an amount equal to 50% . The place of the aggregate Purchase Price closing for all the Shares being purchased and the Closing Time may be varied by agreement between you and the Management Investor hereunder Company. Payment for the Shares shall be paid by delivery by the Management Investor made to the Company by next day funds payable to the order of a 6.5% promissory note having an original principal amount equal the Company, against delivery to such amount (you for the "Note"), respective accounts of the form Underwriters of which Note is attached hereto as Exhibit A.the Shares to be purchased by them. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring Shares to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified be purchased by the Company Underwriters shall be in such denominations and registered in such names as you may request in writing at least two Business Days full business days before the Closing Time. The certificates representing the Shares will be made available at the offices of Morgxx Xxxxxx & Xompany, Inc. or at such other place as Morgxx Xxxxxx & Xompany, Inc. may designate for examination and packaging not later than 10:00 a.m. on the last business day prior to the Initial Closing Date;Time. (Bd) You intend to offer the Note; and (C) a pledge agreement (Shares to the "Pledge Agreement") substantially public as set forth in the form attached hereto as Exhibit BProspectus, pursuant to which Pledge Agreement, among other things, but after the Management Investor's obligations under initial public offering of such Shares you may in your discretion vary the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described thereinpublic offering price.

Sale and Delivery. (a) Upon Subject to the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, agrees to issue and sell and deliver to each of the Management InvestorUnderwriters, and each of the Management Investor shall Underwriters agrees, severally and not jointly, to purchase from the Company, [_______] the number of Initial Securities set forth in Schedule I opposite the name of such Underwriter (_____plus an additional amount of Initial Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof) shares at a price of Series C Preferred Stock $26.50 per share (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares"“Purchase Price”). (b) The Subject to the terms and conditions herein set forth, the Company hereby grants an option to the Underwriters, severally and not jointly, to purchase price per share all or part of Series C Preferred Stock shall be equal an additional 9,082,568 Option Securities to cover over-allotments at the Purchase Price less an amount per share equal to any dividends or distributions declared, paid or payable by the Company in respect of the Initial Securities but not payable in respect of the Option Securities (as such term is defined in the Purchase Agreement) (as used herein, the "“Option Purchase Price"”). The Underwriters may exercise the option to purchase Option Securities at any time in whole, or from time to time in part, by giving written notice (an “Exercise Notice”) and shall be paid as follows at to the Initial Closing: (i) an amount equal to 50% Company not later than 30 days after the date of the aggregate Purchase Price for all Pricing Supplement. Any such Exercise Notice shall specify the Shares being number of Option Securities to be purchased by the Management Investor hereunder shall Underwriters and the date on which such Option Securities are to be paid in cash (purchased. Each purchase date of Option Securities must be at least one business day after the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor Exercise Notice is sent to the Company and may not be earlier than the Closing Date nor later than ten business days after the date of a 6.5% promissory note having such Exercise Notice unless, in each case, otherwise agreed in writing by the Representatives and the Company. Following delivery of an original principal amount equal Exercise Notice, on each day, if any, that Option Securities are to be purchased (each, an “Option Time of Delivery”), each Underwriter agrees, severally and not jointly, to purchase the number of Option Securities (subject to such amount (adjustments to eliminate fractional shares as the "Note"), Representatives may determine) that bears the form same proportion to the total number of which Note is attached Option Securities to be purchased at such Option Time of Delivery as the number of Initial Securities set forth in Schedule I hereto as Exhibit A.opposite the name of such Underwriter bears to the total number of Initial Securities. (c) The purchase and sale Initial Securities to be purchased by each Underwriter hereunder will be represented by one or more registered global securities in book-entry form which will be deposited by or on behalf of Shares the Company with The Depository Trust Company (“DTC”) or its designated custodian, unless the Representatives shall occur on otherwise instruct. The Company will deliver the Initial Securities to Xxxxxxx Xxxxx & Co. LLC, acting on behalf of the Underwriters for the account of each Underwriter, against payment by or on behalf of such Underwriter of the amount therefor, as set forth above, by wire transfer of Federal (same day) funds to a commercial bank account located in the United States and designated in writing at least forty-eight hours prior to the Closing Date andby the Company to Xxxxxxx Sachs & Co. LLC, by causing DTC to credit the Initial Securities to the account of Xxxxxxx Xxxxx & Co. LLC, at DTC. The Company will cause the Initial Closing: (i) the Company shall deliver to the Management Investor global certificates representing the Shares, duly endorsed for transfer, transferring Securities to be made available to the Management Investor good and marketable title to such SharesRepresentatives, free and clear acting on behalf of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing PaymentUnderwriters, in immediately available funds to the account specified by the Company for checking at least two Business Days twenty-four hours prior to the Initial Closing Date at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall be 9:30 a.m., New York City time, on October 1, 2018 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called the “Closing Date;.” (Bd) The documents to be delivered on the Note; and (CClosing Date by or on behalf of the parties hereto pursuant to Section 6 hereof, including the cross-receipt for the Securities and any additional certificates requested by the Underwriters pursuant to Section 6(h) a pledge agreement hereof, will be delivered at such time and date at the offices of Xxxxx Xxxxx L.L.P., Xxx Xxxxx Xxxxx, 000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000-0000 or such other location as the Representatives and the Company may agree in writing (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"“Closing Location”), and (iii) certain the Securities will be delivered at the Designated Office, all on the Closing Date. A meeting will be held at the Closing Location at 1:00 p.m., New York City time or at such other collateral described therein.time as the Representatives and the Company may agree in writing, on the New York Business Day next preceding the Closing Date, at which

Sale and Delivery. of the Shares to the Underwriters; Closing (a) Upon On the terms basis of the representations and warranties herein contained, and subject to the terms and conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, the Company agrees to issue and for sell to each of the Underwriters, and each of the Selling Stockholders agrees to sell to each of the Underwriters the number of Firm Selling Stockholder Shares set forth opposite the name of such Selling Stockholder under the caption "Number of Firm Shares to be Sold" in Schedule B, and each Underwriter agrees, severally and not jointly, to purchase price described from the Company and the Selling Stockholders, at the Closing Time (as defined below), the number of Firm Shares set forth opposite the name of such Underwriter in Section 2(bSchedule A (the proportion which each Underwriter's share of the total number of the Firm Shares bears to the total number of Firm Shares is hereinafter referred to as such Underwriter's "underwriting obligation proportion"), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall a purchase from the Company, [price of $_______] (_____) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")_ per share. (b) The In addition, on the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Selling Stockholders hereby grant an option to the Underwriters to purchase, severally and not jointly, up to an additional 900,000 Option Shares at the same purchase price per share as shall be applicable to the Firm Shares. In the event that the Underwriters exercise such option for the full number of Series C Preferred Stock Option Shares, each Selling Stockholder will sell to the Underwriter the number of Option Shares set forth opposite the name of such Selling Stockholder under the caption "Number of Option Shares to be Sold" in Schedule B. In the event that the Underwriters exercise such option for 772,494 Option Shares or less, then Xxxxxxx X. Xxxx shall sell to the Underwriters such number of Option Shares. In the event that the Underwriters exercise such option for more than 772,494 Option Shares but less than the full number of Option Shares, (i) Xxxxxxx X. Xxxx shall sell to the Underwriters 772,494 Option Shares and (ii) the Selling Stockholders (including Xxxxxxx X. Xxxx) shall sell to the Underwriters a number of Option Shares equal to the difference between the number of Option Shares as to which the Underwriters have exercised such option and 772,494 (the "Remaining Exercised Option Shares"), with each such other Selling Stockholder to sell that number of Option Shares as shall be equal to his proportionate share of Remaining Exercised Option Shares as determined by the Purchase Price relation by which the number of Option Shares set forth opposite the name of such Selling Stockholder bears to 127,506. The option hereby granted will expire if not exercised within the thirty (30) day period after the date of the Prospectus by giving written notice to the Company. The option granted hereby may be exercised in whole or in part (but not more than once) by you, as representatives of the Underwriters, only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the Firm Shares. The notice of exercise shall set forth the number of Option Shares as to which the several Underwriters are exercising the option, and the time and date of payment therefor and of issuance and delivery thereof. Such time and date of payment, issuance and delivery (the "Date of Delivery") shall be determined by you but shall not be later than three full business days after the exercise of such term option, nor in any event prior to the Closing Time. If the option is defined in exercised as to all or any portion of the Purchase Agreement) (as used hereinOption Shares, the "Purchase Price") and Option Shares as to which the option is exercised shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid Underwriters, severally and not jointly, in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.their respective underwriting obligation proportions. (c) The Payment of the purchase price for and sale delivery of certificates in definitive form representing the Firm Shares shall occur on be made at the Initial Closing Date andoffices of Xxxxxxx Rice & Company L.L.C., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000 or at such other place as shall be agreed upon by the Company and you, at the Initial Closing: 10:00 a.m. New York time, either (i) on the third full business day after the execution of this Agreement, or (ii) at such other time not more than ten full business days thereafter as you and the Company shall deliver determine (unless, in either case, postponed pursuant to the Management Investor term hereof), (such date and time of payment and delivery being herein called the "Closing Time"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for and delivery of certificates in definitive form representing the Option Shares shall be made at the offices of Xxxxxxx Xxxx & Company L.L.C. in the manner set forth above, or at such other place as the Company and you shall determine, on the Date of Delivery as specified in the notice from you to the Company and the Selling Stockholders. Payment for the Firm Shares and the Option Shares shall be made to the Company and the Selling Stockholders by wire transfer in same-day funds to the accounts designated to the Underwriters in writing by the Company against delivery to you for the respective accounts of the Underwriters of the Shares to be purchased by them. (d) The certificates representing the Shares, duly endorsed for transfer, transferring Shares to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified be purchased by the Company Underwriters shall be in such denominations and registered in such names as you may request in writing at least two Business Days full business days before the Closing Time or the Date of Delivery, as the case may be. The certificates representing the Shares will be made available at the offices of Xxxxxxx Rice & Company L.L.C. or at such other place as Xxxxxxx Xxxx & Company L.L.C. may designate for examination and packaging not later than 10:00 a.m. New York time at least one full business day prior to the Initial Closing Date;Time or the Date of Delivery, as the case may be. (Be) After the Note; and (C) a pledge agreement (Registration Statement becomes effective, you intend to offer the "Pledge Agreement") substantially Shares to the public as set forth in the form attached hereto as Exhibit BProspectus, pursuant to which Pledge Agreement, among other things, but after the Management Investor's obligations under initial public offering of such Shares you may in your discretion vary the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described thereinpublic offering price.

Sale and Delivery. (a) Upon Subject to the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, agrees to issue and sell and deliver to each of the Management InvestorUnderwriters, and each of the Management Investor shall Underwriters agrees, severally and not jointly, to purchase from the Company, [_______] the number of Firm Shares set forth in Schedule I opposite the name of such Underwriter (_____plus an additional amount of Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof) shares at a purchase price of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")$12.4485 per share. (b) The In addition, subject to the terms and conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, the Option Shares at the same purchase price per share of Series C Preferred Stock shall as the Underwriters paid for the Firm Shares. The option may be equal to the Purchase Price (as such term is defined exercised in the Purchase Agreement) (as used hereinwhole or in part, and, if exercised, the "Purchase Price") and shall Option Shares must be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder Underwriters and resold to persons not acting in the capacity of underwriters, placement agents or wholesalers, on or before the 30th day after the date on which the Firm Shares were purchased by one or more persons not acting in the capacity of Underwriters, placement agents or wholesalers. The option may be exercised in whole or in part from time to time upon written or telegraphic notice by the Representatives to the Company setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the settlement date. Delivery of the Option Shares, and payment therefor, shall be paid made as provided in cash (this Section 2. The number of Option Shares to be purchased by each Underwriter shall be the "Closing Payment"); and (ii) an amount equal to 50% same percentage of the aggregate Purchase Price for all the total number of Option Shares being to be purchased by the Management Investor hereunder shall be paid by delivery by several Underwriters as such Underwriter is purchasing of the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal Firm Shares, subject to such amount (adjustments as the "Note"), the form of which Note is attached hereto as Exhibit A.Representatives in their absolute discretion shall make to eliminate any fractional shares. (c) The purchase Securities to be purchased by each Underwriter hereunder will be represented by one or more registered global securities in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (“DTC”) or its designated custodian, unless the Representatives shall otherwise instruct. The Company will deliver the Securities to X.X. Xxxxxx Securities Inc., acting on behalf of the Underwriters for the account of each Underwriter, against payment by or on behalf of such Underwriter of the amount therefor, as set forth above, by wire transfer of Federal (same day) funds to a commercial bank account located in the United States and sale designated in writing at least forty-eight hours prior to the Closing Date by the Company to X.X. Xxxxxx Securities Inc., by causing DTC to credit the Securities to the account of Shares X.X. Xxxxxx Securities Inc., at DTC. The Company will cause the global certificates representing the Securities to be made available to Credit Suisse Securities (USA) LLC, X.X. Xxxxxx Securities Inc., Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxx Fargo Securities, LLC, as joint-book running managing underwriters (together, the “Representatives”), acting on behalf of the Underwriters, for checking at least twenty-four hours prior to the Closing Date at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall occur be 9:30 a.m., New York City time, on June 15, 2010 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called the “Closing Date.” (d) The documents to be delivered on the Initial Closing Date andby or on behalf of the parties hereto pursuant to Section 6 hereof, including the cross-receipt for the Securities and any additional certificates requested by the Underwriters pursuant to Section 6(h) hereof, will be delivered at such time and date at the offices of Xxxxx Xxxxx L.L.P., Xxx Xxxxx Xxxxx, 000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000-0000 or such other location as the Representatives and the Company may agree in writing (the “Closing Location”), and the Securities will be delivered at the Designated Office, all on the Closing Date. A meeting will be held at the Closing Location at 1:00 p.m., New York City time or at such other time as the Representatives and the Company may agree in writing, on the New York Business Day next preceding the Closing Date, at which meeting the Initial Closing:final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 2, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. (ie) If the option provided in Section 2(b) hereof is exercised after the New York Business Day prior to the Closing Date, the Company will deliver the Option Shares (at the expense of the Company) to the Representatives on the date specified by the Representatives (which shall be the third New York Business Day after exercise of the said option) for the respective accounts of the Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer of Federal (same day) funds to a commercial bank account located in the United States specified by the Company. If settlement for the Option Shares occurs after the Closing Date, the Company will deliver to the Management Investor certificates representing Representatives on the settlement date for the Option Shares, duly endorsed for transferand the obligation of the Underwriters to purchase the Option Shares shall be conditioned upon receipt of, transferring to supplemental opinions, certificates and letters confirming as of such date the Management Investor good opinions, certificates and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) letters delivered on the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, Date pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described thereinSection 6 hereof.

Sale and Delivery. of the Shares to the Underwriters; Closing (a) Upon On the terms basis of the representations and warranties herein contained, and subject to the terms and conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, the Company agrees to issue and for sell to each of the Underwriters the Firm Company Shares, and each of the Selling Stockholders agrees to sell to each of the Underwriters the number of Firm Selling Stockholder Shares set forth opposite the name of such Selling Stockholder under the caption "Number of Firm Shares to be Sold" in Schedule B, and each Underwriter agrees, severally and not jointly, to purchase price described from the Company and the Selling Stockholders, at the Closing Time (as defined below), the number of Firm Shares set forth opposite the name of such Underwriter in Section 2(bSchedule A (the proportion which each Underwriter's share of the total number of the Firm Shares bears to the total number of Firm Shares is hereinafter referred to as such Underwriter's "underwriting obligation proportion"), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall a purchase from the Company, [price of $_______] (_____) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")_ per share. (b) The In addition, on the basis of the representations and warranties herein contained, and subject to the terms and conditions herein set forth, the Selling Stockholders hereby grant an option to the Underwriters to purchase, severally and not jointly, up to an additional 900,000 Option Shares at the same purchase price per share as shall be applicable to the Firm Shares. In the event that the Underwriters exercise such option for the full number of Series C Preferred Stock Option Shares, each Selling Stockholder will sell to the Underwriter the number of Option Shares set forth opposite the name of such Selling Stockholder under the caption "Number of Option Shares to be Sold" in Schedule B. In the event that the Underwriters exercise such option for 772,494 Option Shares or less, then Xxxxxxx X. Xxxx shall sell to the Underwriters such number of Option Shares. In the event that the Underwriters exercise such option for more than 772,494 Option Shares but less than the full number of Option Shares, (i) Xxxxxxx X. Xxxx shall sell to the Underwriters 772,494 Option Shares and (ii) the Selling Stockholders (including Xxxxxxx X. Xxxx) shall sell to the Underwriters a number of Option Shares equal to the difference between the number of Option Shares as to which the Underwriters have exercised such option and 772,494 (the "Remaining Exercised Option Shares"), with each such Selling Stockholder to sell that number of Option Shares as shall be equal to his proportionate share of Remaining Exercised Option Shares as determined by the Purchase Price relation by which the number of Option Shares set forth opposite the name of such Selling Stockholder bears to 127,506. The option hereby granted will expire if not exercised within the thirty (30) day period after the date of the Prospectus by giving written notice to the Company. The option granted hereby may be exercised in whole or in part (but not more than once) by you, as representatives of the Underwriters, only for the purpose of covering over-allotments that may be made in connection with the offering and distribution of the Firm Shares. The notice of exercise shall set forth the number of Option Shares as to which the several Underwriters are exercising the option, and the time and date of payment therefor and of issuance and delivery thereof. Such time and date of payment, issuance and delivery (the "Date of Delivery") shall be determined by you but shall not be later than three full business days after the exercise of such term option, nor in any event prior to the Closing Time. If the option is defined in exercised as to all or any portion of the Purchase Agreement) (as used hereinOption Shares, the "Purchase Price") and Option Shares as to which the option is exercised shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid Underwriters, severally and not jointly, in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.their respective underwriting obligation proportions. (c) The Payment of the purchase price for and sale delivery of certificates in definitive form representing the Firm Shares shall occur on be made at the Initial Closing Date andoffices of Xxxxxxx Rice & Company L.L.C., 000 Xxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxxxxx, Xxxxxxxxx 00000 or at such other place as shall be agreed upon by the Company and you, at the Initial Closing: 10:00 a.m. New York time, either (i) on the third full business day after the execution of this Agreement, or (ii) at such other time not more than ten full business days thereafter as you and the Company shall deliver determine (unless, in either case, postponed pursuant to the Management Investor term hereof), (such date and time of payment and delivery being herein called the "Closing Time"). In addition, in the event that any or all of the Option Shares are purchased by the Underwriters, payment of the purchase price for and delivery of certificates in definitive form representing the Option Shares shall be made at the offices of Xxxxxxx Xxxx & Company L.L.C. in the manner set forth above, or at such other place as the Company and you shall determine, on the Date of Delivery as specified in the notice from you to the Company and the Selling Stockholders. Payment for the Firm Shares and the Option Shares shall be made to the Company and the Selling Stockholders by wire transfer in same-day funds to the accounts designated to the Underwriters in writing by the Company against delivery to you for the respective accounts of the Underwriters of the Shares to be purchased by them. (d) The certificates representing the Shares, duly endorsed for transfer, transferring Shares to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) the Closing Payment, in immediately available funds to the account specified be purchased by the Company Underwriters shall be in such denominations and registered in such names as you may request in writing at least two Business Days full business days before the Closing Time or the Date of Delivery, as the case may be. The certificates representing the Shares will be made available at the offices of Xxxxxxx Rice & Company L.L.C. or at such other place as Xxxxxxx Xxxx & Company L.L.C. may designate for examination and packaging not later than 10:00 a.m. New York time at least one full business day prior to the Initial Closing Date;Time or the Date of Delivery, as the case may be. (Be) After the Note; and (C) a pledge agreement (Registration Statement becomes effective, you intend to offer the "Pledge Agreement") substantially Shares to the public as set forth in the form attached hereto as Exhibit BProspectus, pursuant to which Pledge Agreement, among other things, but after the Management Investor's obligations under initial public offering of such Shares you may in your discretion vary the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described thereinpublic offering price.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management InvestorInvestor pursuant to the Rights Offering, and the Management Investor shall purchase from the CompanyCompany pursuant to the Rights Offer, [_______] an aggregate of $1,667,000 in stated value (_____at $1.00 per share) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")) at the price per share at which Series C Preferred Stock is offered in the Rights Offer, subject to the terms and conditions of the Rights Offering. (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase Price") and shall be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A. (c) The purchase and sale of Shares by the Management Investor shall occur on the Initial Closing Date and, at the Initial Closingtime and place provided for in the Rights Offer, and at the closing of such purchase and sale of Shares by the Management Investor: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) any documents required to be submitted by a Company shareholder desiring to participate in the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing DateRights Offer; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.

Sale and Delivery. (a) Upon Subject to the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter herein set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, agrees to issue and sell and deliver to each of the Management InvestorUnderwriters, and each of the Management Investor shall Underwriters agrees, severally and not jointly, to purchase from the Company, [_______] the number of Firm Shares set forth in Schedule I opposite the name of such Underwriter (_____plus an additional amount of Securities that such Underwriter may become obligated to purchase pursuant to the provisions of Section 8 hereof) shares at a purchase price of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "Shares")$11.58 per share. (b) The In addition, subject to the terms and conditions herein set forth, the Company hereby grants an option to the several Underwriters to purchase, severally and not jointly, the Option Shares at the same purchase price per share of Series C Preferred Stock shall as the Underwriters paid for the Firm Shares. The option may be equal to the Purchase Price (as such term is defined exercised in the Purchase Agreement) (as used hereinwhole or in part, and, if exercised, the "Purchase Price") and shall Option Shares must be paid as follows at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder Underwriters and resold to persons not acting in the capacity of underwriters, placement agents or wholesalers, on or before the 30th day after the date on which the Firm Shares were purchased by one or more persons not acting in the capacity of Underwriters, placement agents or wholesalers. The option may be exercised in whole or in part from time to time upon written or telegraphic notice by the Representatives to the Company setting forth the number of Option Shares as to which the several Underwriters are exercising the option and the settlement date. Delivery of the Option Shares, and payment therefor, shall be paid made as provided in cash (this Section 2. The number of Option Shares to be purchased by each Underwriter shall be the "Closing Payment"); and (ii) an amount equal to 50% same percentage of the aggregate Purchase Price for all the total number of Option Shares being to be purchased by the Management Investor hereunder shall be paid by delivery by several Underwriters as such Underwriter is purchasing of the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal Firm Shares, subject to such amount (adjustments as the "Note"), the form of which Note is attached hereto as Exhibit A.Representatives in their absolute discretion shall make to eliminate any fractional shares. (c) The purchase Securities to be purchased by each Underwriter hereunder will be represented by one or more registered global securities in book-entry form which will be deposited by or on behalf of the Company with The Depository Trust Company (“DTC”) or its designated custodian, unless the Representatives shall otherwise instruct. The Company will deliver the Securities to Citigroup Global Markets Inc., acting on behalf of the Underwriters for the account of each Underwriter, against payment by or on behalf of such Underwriter of the amount therefor, as set forth above, by wire transfer of Federal (same day) funds to a commercial bank account located in the United States and sale designated in writing at least forty-eight hours prior to the Closing Date by the Company to Citigroup Global Markets Inc., by causing DTC to credit the Securities to the account of Shares Citigroup Global Markets Inc., at DTC. The Company will cause the global certificates representing the Securities to be made available to Citigroup Global Markets Inc., Deutsche Bank Securities Inc., Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated and UBS Securities LLC, as joint-book running managing underwriters (together, the “Representatives”), acting on behalf of the Underwriters, for checking at least twenty-four hours prior to the Closing Date at the office of DTC or its designated custodian (the “Designated Office”). The time and date of such delivery and payment shall occur be 9:30 a.m., New York City time, on September 16, 2009 or such other time and date as the Representatives and the Company may agree upon in writing. Such time and date are herein called the “Closing Date.” (d) The documents to be delivered on the Initial Closing Date andby or on behalf of the parties hereto pursuant to Section 6 hereof, including the cross-receipt for the Securities and any additional certificates requested by the Underwriters pursuant to Section 6(h) hereof, will be delivered at such time and date at the offices of Xxxxx Xxxxx L.L.P., Xxx Xxxxx Xxxxx, 000 Xxxxxxxxx, Xxxxxxx, Xxxxx 00000-0000 or such other location as the Representatives and the Company may agree in writing (the “Closing Location”), and the Securities will be delivered at the Designated Office, all on the Closing Date. A meeting will be held at the Closing Location at 1:00 p.m., New York City time or at such other time as the Representatives and the Company may agree in writing, on the New York Business Day next preceding the Closing Date, at which meeting the Initial Closing:final drafts of the documents to be delivered pursuant to the preceding sentence will be available for review by the parties hereto. For the purposes of this Section 2, “New York Business Day” shall mean each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in New York are generally authorized or obligated by law or executive order to close. (ie) If the option provided in Section 2(b) hereof is exercised after the New York Business Day prior to the Closing Date, the Company will deliver the Option Shares (at the expense of the Company) to the Representatives on the date specified by the Representatives (which shall be the third New York Business Day after exercise of the said option) for the respective accounts of the Underwriters, against payment by the several Underwriters through the Representatives of the purchase price thereof to or upon the order of the Company by wire transfer of Federal (same day) funds to a commercial bank account located in the United States specified by the Company. If settlement for the Option Shares occurs after the Closing Date, the Company will deliver to the Management Investor certificates representing Representatives on the settlement date for the Option Shares, duly endorsed for transferand the obligation of the Underwriters to purchase the Option Shares shall be conditioned upon receipt of, transferring to supplemental opinions, certificates and letters confirming as of such date the Management Investor good opinions, certificates and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) letters delivered on the Closing Payment, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, Date pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described thereinSection 6 hereof.

Sale and Delivery. (a) Upon the terms and subject to the conditions set forth herein, and conditioned upon the consummation of the Initial Closing, in reliance upon the representations and warranties of the Management Investor hereinafter set forth, and for the purchase price described in Section 2(b), at the Initial Closing, the Company shall issue, sell and deliver to the Management Investor, and the Management Investor shall purchase from the Company, [_______] two hundred and fifty (_____250) shares of Series C Preferred Stock (such shares of Series C Preferred Stock are referred to collectively herein as the "SharesSHARES"). The number "250" in the preceding sentence shall be two hundred and fifty thousand (250,000) if the Recapitalization has been consummated prior to the Initial Closing Date). (b) The purchase price per share of Series C Preferred Stock shall be equal to the Purchase Price (as such term is defined in the Purchase Agreement) (as used herein, the "Purchase PricePURCHASE PRICE") and shall be paid as follows in cash at the Initial Closing: (i) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid in cash (the "Closing Payment"); and (ii) an amount equal to 50% of the aggregate Purchase Price for all the Shares being purchased by the Management Investor hereunder shall be paid by delivery by the Management Investor to the Company of a 6.5% promissory note having an original principal amount equal to such amount (the "Note"), the form of which Note is attached hereto as Exhibit A.. (c) The purchase and sale of Shares shall occur on the Initial Closing Date and, at the Initial Closing: (i) the Company shall deliver to the Management Investor certificates representing the Shares, duly endorsed for transfer, transferring to the Management Investor good and marketable title to such Shares, free and clear of all liens and encumbrances; and (ii) the Management Investor shall deliver to the Company: (A) Company the Closing PaymentPurchase Price, in immediately available funds to the account specified by the Company at least two Business Days prior to the Initial Closing Date; (B) the Note; and (C) a pledge agreement (the "Pledge Agreement") substantially in the form attached hereto as Exhibit B, pursuant to which Pledge Agreement, among other things, the Management Investor's obligations under the Note shall be secured by a pledge of (i) the Shares, (ii) the shares of Common Stock that may be acquired upon conversion of the Shares (the "Underlying Common Shares"), and (iii) certain other collateral described therein.