Common use of Sale and Issuance of Securities Clause in Contracts

Sale and Issuance of Securities. Except for any exercise of Warrants or conversion of Promissory Notes pursuant to their respective terms, the Securities will be issued under this Agreement in three closings. (a) Upon the terms and subject to the conditions set forth in this Agreement, at the First Closing the Purchaser shall advance to the Company the Initial Disbursement, and the Company shall issue and deliver to the Purchaser the Promissory Note, together with the Tranche A Warrants, as set forth on Exhibit A. The First Closing will occur on the date hereof (the "FIRST CLOSING DATE") and concurrently with the execution of the Security Agreements and the Registration Rights Agreement (the "FIRST CLOSING"). (b) Upon the terms and subject to the conditions set forth in this Agreement, at the Second Closing the Purchaser shall advance to the Company the Second Disbursement, the Company shall issue and deliver to the Purchaser the Tranche B Warrants and the Tranche A Warrants shall become exercisable for additional shares as set forth on Exhibit A. The Second Closing will occur as soon as practicable after the Purchaser provides written notice to the Company that it desires to effect the Second Closing or after all of the conditions set forth in Article VII hereof shall have been satisfied or duly waived by Purchaser (the "SECOND CLOSING DATE"), but in no event later than two Business Days thereafter (the "SECOND CLOSING"). (c) Upon the terms and subject to the conditions set forth in this Agreement, at the Third Closing the Purchaser shall convert the Promissory Note and exercise, or transfer to enable a Permitted Transferee to exercise, the Tranche B Warrant and the Company shall issue the number of shares of Series B Preferred Stock required to comply with such conversion and exercise. The Third Closing will occur as soon as practicable after the Purchaser and/or Permitted Transferees provide written notice to the Company that it desires to effect the Third Closing; provided that all of the conditions set forth in Article VII hereof shall have been satisfied or duly waived (the "THIRD CLOSING DATE," and together with the First Closing Date and the Second Closing Date, the "CLOSING DATES"), including, without limitation, receipt of Stockholder Approval, but in no event later than five Business Days thereafter (the "THIRD CLOSING," and together with the First Closing and the Second Closing, the "CLOSINGS"). (d) On or before the First Closing, the Company shall adopt and file with the Secretary of State of Delaware the Certificate of Designation relating to the Series B Preferred Stock (the "CERTIFICATE OF DESIGNATION"), substantially in the form attached as Exhibit J hereto.

Sale and Issuance of Securities. Except for any exercise of Warrants or conversion of Promissory Notes pursuant Subject to their respective terms, the Securities will be issued under this Agreement in three closings. (a) Upon the terms and subject to the conditions set forth in this Agreement, at the First Closing the Purchaser shall advance to the Company the Initial Disbursement, and the Company shall issue and deliver to the Purchaser the Promissory Note, together with the Tranche A Warrants, as set forth on Exhibit A. The First Closing will occur on the date hereof (the "FIRST CLOSING DATE") and concurrently with the execution of the Security Agreements and the Registration Rights Agreement (the "FIRST CLOSING"). (b) Upon the terms and subject to the conditions set forth in this Agreement, at the Second Closing the Purchaser shall advance to the Company the Second Disbursement------------------------------- hereof, the Company shall will issue and deliver sell to the each Purchaser the Tranche B Warrants severally, and the Tranche A Warrants shall become exercisable for additional shares as set forth on Exhibit A. The Second Closing each Purchaser will occur as soon as practicable after the Purchaser provides written notice to purchase from the Company that it desires to effect the Second Closing or after all of the conditions set forth in Article VII hereof shall have been satisfied or duly waived by Purchaser (the "SECOND CLOSING DATE")severally, but in no event later than two Business Days thereafter (the "SECOND CLOSING"). (c) Upon the terms and subject to the conditions set forth in this Agreement, at the Third Closing the Purchaser shall convert the Promissory Note and exercise, or transfer to enable a Permitted Transferee to exercise, the Tranche B Warrant and the Company shall issue the number of shares of Series B Initial Preferred Stock required to comply with and the number of Warrants set forth opposite such conversion and exercisePurchaser's name on the Schedule of Purchasers attached hereto as Exhibit C at the respective purchase price specified on the Schedule of Purchasers. The Third Closing will occur as soon as practicable after the Purchaser and/or Permitted Transferees provide written notice Such purchase price shall be paid to the Company that it desires by the Purchasers in the following manner: (a) At the Closing the outstanding principal amount, plus accrued interest, under the Loan and Security Agreement, dated as of February 16, 2001, between the Company and SCP (the "SCP Loan and Security Agreement"), and the Loan and Security Agreement, dated as of January 19, 2001, as amended as of February 16, 2001, between the Company and ICG (the "ICG Loan and Security Agreement") shall be deemed paid by the Company and applied to effect the Third Closingpurchase price. (The SCP Loan and Security Agreement and the ICG Loan and Security Agreement are sometimes collectively referred to as "the Loan and Security Agreements" and individually as a "Loan and Security Agreement.") (b) The balance of the purchase price shall be paid in installments, upon submission to the Purchasers, on or before the expiration of four months after the Closing Date, of a written request therefore from the Company (each, a "Request") which certifies the Company's then current compliance with the Budget and Financial Management Plan previously prepared by the Company and approved by the Purchasers (the "Plan") and the Company's need for an installment of the purchase price in the amount projected for payment at such time under the Plan. Each Request must be received by the Purchasers not less than two business days prior to the desired date of payment and must be accompanied by financial information from the Company confirming to the reasonable satisfaction of the Purchasers the accuracy of the certifications contained in the Request. All payments of purchase price pursuant to a Request shall be made to the Company, by wire transfer to its primary operating account, as provided by the Company to the Purchasers. Each installment of purchase price paid by the Purchasers shall be comprised of payments made by the Purchasers in proportion to their respective shares of the aggregate purchase price for the Initial Preferred Stock (i.e., 60% by SCP and 40% by ICG, sometimes hereinafter referred to as the "Ratio"); provided that all in the event that the outstanding amounts (principal plus accrued interest) owing with respect to the Loan and Security Agreements on the Closing Date are not in proportion to the Ratio, payments of each installment shall first be made by the Purchaser whose share of outstanding principal and interest on the Closing Date was less than its share of the conditions set forth in Article VII hereof Ratio until such time as the Ratio shall have been satisfied or duly waived (the "THIRD CLOSING DATE," and together with the First Closing Date and the Second Closing Date, the "CLOSING DATES"), including, without limitation, receipt of Stockholder Approval, but in no event later than five Business Days thereafter (the "THIRD CLOSING," and together with the First Closing and the Second Closing, the "CLOSINGS")be restored. (d) On or before the First Closing, the Company shall adopt and file with the Secretary of State of Delaware the Certificate of Designation relating to the Series B Preferred Stock (the "CERTIFICATE OF DESIGNATION"), substantially in the form attached as Exhibit J hereto.

Sale and Issuance of Securities. Except for any exercise of Warrants or conversion of Promissory Notes pursuant Subject to their respective terms, the Securities will be issued under this Agreement in three closings. (a) Upon the terms and subject to the conditions set forth in of this Agreement, at the First Closing Closings (as defined below) the Purchaser shall advance agrees to the Company the Initial Disbursementsubscribe for and purchase, and the Company shall agrees to sell and issue and deliver to the Purchaser the Promissory Purchaser, (i) a Note, together with in the Tranche A Warrants, principal amount as set forth on Exhibit A. The First Closing will occur the Purchaser Signature Page attached hereto (the shares of the Company’s Common Stock issuable upon conversion of or otherwise pursuant to the Note, collectively, the “Conversion Shares”), and (ii) a Warrant, to acquire up to that number of shares of Common Stock set forth on the date hereof Purchaser Signature Page attached hereto (the "FIRST CLOSING DATE"shares of Common Stock issuable upon exercise of or otherwise pursuant to the Warrant, collectively, the “Warrant Shares”), for the purchase price set forth on the Purchaser Signature Page attached hereto next to the line entitled “Purchase Price,” which Purchase Price shall be equal to ninety-two percent (92%) of the principal amount of the Note. The Note shall be secured pursuant to the terms of a Security Agreement by and concurrently among the Company, the Purchasers and Falcon acting as collateral agent under the Security Agreement, in substantially the form attached hereto as Exhibit C (the “Security Agreement”). The Note, the Conversion Shares, the Warrant and Warrant Shares offered hereby are collectively referred to herein as the “Securities.” Concurrent with the execution of this Agreement by the Security Agreements Purchaser and the Registration Rights Agreement (delivery by the "FIRST CLOSING"). (b) Upon the terms and subject Purchaser to the conditions set forth in Company of Purchaser’s signature page to this Agreementagreement, at the Second Closing the Purchaser shall advance to transmit by wire transfer as set forth below the Company amount of the Second Disbursement, the Company shall issue and deliver to the Purchaser the Tranche B Warrants and the Tranche A Warrants shall become exercisable for additional shares Purchaser’s investment as set forth on Exhibit A. The Second Closing will occur as soon as practicable after the Purchaser provides written notice Signature Page attached hereto to the Company that it desires to effect (each, an “Investment”). Any and all amounts received by the Second Closing or after all Company in connection with an Investment shall be available for use by the Company upon the occurrence of the conditions Closings as set forth in Article VII hereof shall have been satisfied or duly waived by Purchaser (the "SECOND CLOSING DATE"), but in no event later than two Business Days thereafter (the "SECOND CLOSING")below. (c) Upon the terms and subject to the conditions set forth in this Agreement, at the Third Closing the Purchaser shall convert the Promissory Note and exercise, or transfer to enable a Permitted Transferee to exercise, the Tranche B Warrant and the Company shall issue the number of shares of Series B Preferred Stock required to comply with such conversion and exercise. The Third Closing will occur as soon as practicable after the Purchaser and/or Permitted Transferees provide written notice to the Company that it desires to effect the Third Closing; provided that all of the conditions set forth in Article VII hereof shall have been satisfied or duly waived (the "THIRD CLOSING DATE," and together with the First Closing Date and the Second Closing Date, the "CLOSING DATES"), including, without limitation, receipt of Stockholder Approval, but in no event later than five Business Days thereafter (the "THIRD CLOSING," and together with the First Closing and the Second Closing, the "CLOSINGS"). (d) On or before the First Closing, the Company shall adopt and file with the Secretary of State of Delaware the Certificate of Designation relating to the Series B Preferred Stock (the "CERTIFICATE OF DESIGNATION"), substantially in the form attached as Exhibit J hereto.