Common use of Second Closing Clause in Contracts

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) The obligation of the conditions Company to closing set forth in Section 1.2(d)issue, the second closing (the "Second Closing") shall take place at a time sell and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (at the "Conversion Shares") would cause Second Closing is subject to the Investors or their Affiliates fulfillment to be deemed for purposes the reasonable satisfaction of the BHC Act Company at or prior to own 10% or more the Second Closing of the following conditions: (a) The Second Closing Investors shall have delivered the Second Purchase Price in accordance with Section 2.4(b); (b) Each Second Closing Investor shall have delivered its executed counterpart signature page to this Agreement; (c) The Amended and Restated Shareholders Agreement, duly executed by the New Series B Investors and the holders of at least a majority of the outstanding shares of Common Stock on a fully-diluted basis, including a majority of the Series A Preferred Stock voting as a separate class and on a fully-diluted and as converted basis; (d) The First Amendment to Registration Rights Agreement, duly executed by a majority of the holders of Registrable Securities (as defined the Original Registration Rights Agreement); (e) Each of the representations and warranties of the Investors contained in Article VIII shall be true, correct and complete in all material respects on and as of the Second Closing Date as though then made, except for such representations and warranties which expressly speak as of a certain date, which representations and warranties shall be true, correct and complete in all material respects as of the date specified. (f) Section 7.4(a) of the Series A Preferred Stock Purchase Agreement shall be amended to read in its entirety as follows: (a) (i) As of the First Closing, the authorized capital stock of the Company consisted solely of (1) ten million (10,000,000) shares of Common Stock, of which 1,696,284 shares were issued and outstanding; and (2) three million (3,000,000) shares of preferred stock, $.0001 par value per share, of which 2,250,000 shares had been designated as Series A Preferred Stock and 962,101 shares were issued and outstanding. The Company had reserved for issuance (x) sufficient shares of Common Stock for issuance upon conversion or redemption of all outstanding or authorized Series A Preferred Shares and (y) 2,100,000 shares of Common Stock upon exercise of options pursuant to its 2004 Stock Option Incentive Plan. Immediately after the First Closing, the capitalization of the Company was as set forth in the Capitalization Schedule attached to Schedule 7.4, which Capitalization Schedule and Schedule 7.4 (A) reflected the capitalization of the Company both on an actual shares outstanding basis and on a fully diluted basis assuming conversion of all convertible securities and the exercise of all outstanding options and warrants and all options reserved for future grant under any class stock option plans and (B) set forth (I) each outstanding option, warrant or other right to purchase shares of voting securities capital stock of the Company or to otherwise control any of its Subsidiaries and (II) for each such option, warrant or right, the Companyholder thereof, then the date of grant, the exercise price and the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiessubject thereto.

Second Closing. (1i) Subject to The closing of the satisfaction transactions contemplated by clause (or, where permissible, waiverii) of the conditions to closing set forth in Section 1.2(d), the second closing 2.1 (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by remotely via the parties hereto, but in no event later than electronic exchange of closing deliveries (i) on the tenth business day that is two (2) Business Days after the date of satisfaction or waiver of on which the last of the conditions specified set forth in Section 1.2(d)7.4, Section 7.5 and Section 7.6 (other than any such conditions that by delivery by facsimile their terms are not capable of any documents required to be delivered pursuant to this Agreement to consummate being satisfied until the First ClosingSecond Closing Date, but subject to the offices satisfaction or waiver of Mxxxxxx Spidi & Fxxxxthose conditions) is satisfied or, PC located at 1000 00xx Xxxxxxwhen permissible, X.X., Xxxxxxxxxx, X.X. 00000, waived by the Party for whose benefit such conditions exist; or (ii) on such other date or location at such other time or place as agreed by the parties Parties may mutually agree upon in writingwriting (such date, the “Second Closing Date”). The date Second Closing shall be effective for all purposes at 12:01 a.m. central time on the Second Closing Date. (ii) At the Second Closing, each Seller shall deliver, or cause to be delivered, to Buyer the following: (A) evidence of resignations or removals, effective as of the Second Closing, of each of the directors, managers and officers of the Second Closing Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (5) Business Day prior to the Second Closing; (B) a duly executed FIRPTA Certificate and IRS Form W-9 by such Seller (or, if such Seller is classified as an entity disregarded as separate from its regarded owner, such owner), in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if such Seller fails to provide such FIRPTA Certificate or IRS Form W-9 shall be to make an appropriate withholding under Sections 1445 or 1446(f) of the Code, as applicable; (C) a membership interest transfer power, duly executed by such Seller with respect to such Seller’s respective Second Closing Interests; and (D) with respect to such Seller, the certificate referred to as the "Second Closing Datein Section 7.6(d)." (2iii) Subject to the satisfaction of the conditions described in Section 1.2(d), at At the Second Closing, Buyer shall deliver, or cause to be delivered, to each Seller the Company will deliver to following: (A) such Seller’s portion of the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Closing Preliminary Purchase Price, in accordance with Section 2.2; and (B) the "Purchase Price") by wire transfer of immediately available United States funds certificate referred to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesin Section 7.5(c).

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of Mxxxxxx Malizia Spidi & FxxxxFixxx, PC XX located at 1000 00xx Xxxxxxxx 0027 25th Street, X.X., Xxxxxxxxxx, X.X. 00000, or such other date xx xxxx xxxxx xxte or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "“Second Closing Date."” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by each Investor of its pro rata share the Investors of $16,942,000 22,458,000 (the "“Second Purchase Price" ” and together with the Initial Purchase Price, the "“Purchase Price"”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "“Conversion Shares"”) would cause the Investors an Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors such Investor will not be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1a) Subject In the event that prior to April 7, 2005 (the satisfaction (or“Option Period”), where permissible, waiver) a public announcement of the conditions to closing set forth in Section 1.2(d)Clinical Event has occurred, the Company shall have the right to require a second closing (the "“Second Closing"”) pursuant to which the Company shall take place issue and sell to each Purchaser, and each Purchaser shall, severally and not jointly, purchase from the Company, one-half of such number of Units as set forth opposite such Purchaser’s name in Exhibit A attached hereto at a time and date as the Per Unit Purchase Price, which shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, addition to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writingUnits purchased under Section 2.2. The date of the Second Closing is referred to as the "Second Closing Date." shall occur within two (2) Subject to business days after the satisfaction public announcement of the conditions described in Section 1.2(d), at Clinical Event. At the Second Closing, the Company will shall deliver or cause to be delivered to each Purchaser the following: (i) a Warrant, registered in the name of such Purchaser, pursuant to which such Purchaser shall have the right to acquire such number of Warrant Shares as set forth opposite such Purchaser’s name on Exhibit A under the heading “Second Closing Warrant Shares,” on the terms set forth therein; (ii) an instruction letter to the Investors one or more certificates bearing Transfer Agent in the appropriate legends herein provided for form set forth on Exhibit C hereto; and free (iii) a certificate from a duly authorized officer certifying on behalf of the Company that a public announcement of the Clinical Event has occurred. At the Second Closing, each Purchaser shall instruct the Escrow Agent to deliver an amount equal to the Per Unit Purchase Price multiplied by one-half of the number of Units as set forth opposite such Purchaser’s name on Exhibit A, in United States dollars and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Pricein immediately available funds, the "Purchase Price") by wire transfer of immediately available United States funds to a bank an account designated in writing to such Purchaser by the Company; provided that if Company for such purpose, and the Common Shares issued Company shall consent to such instruction. Each Purchaser shall have the right, at any time during the First Option Period, to request a Second Closing and to purchase on the shares of Common Stock issuable upon terms provided herein up to the conversion total amount of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to Units that could be purchased by such Purchaser at the Second Closing Closing. (b) At the time of the First Closing, each Purchaser shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and deliver the Purchase Price for the Second Closing set forth in Section 2.4(a) (the “Escrow Funds”) to Proskauer Rose LLP (the “Escrow Agent”), to be held by the Escrow Agent in escrow on behalf of such Purchaser. Upon the occurrence of the public announcement of the Clinical Event during the Option Period, the Escrow Agent shall be reduced accordingly) such release the Escrow Funds to the Company as provided in the Escrow Agreement. In the event that the Investors will not be deemed for purposes public announcement of the BHC Act Clinical Event does not occur prior to own 10% or more the termination of the outstanding shares of any class of voting securities of Option Period, the Company or Escrow Agent shall return the Escrow Funds to otherwise control the Company. Any determinations under Purchasers as provided in the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesEscrow Agreement.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth third business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of Mxxxxxx Xxxxxxx Spidi & FxxxxXxxxx, PC located at 1000 PC, 0000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "“Second Closing Date."” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors Investor (i) one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 _________ shares of Series B Preferred Stock against payment by each the Investor of its pro rata share of $16,942,000 _________ (the "“Second Purchase Price" ” and together with the Initial Purchase Price, the "“Purchase Price"”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided provided, that if the Second Common Shares, together with the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "“Conversion Shares"”) would cause the Investors Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors Investor will not be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of Skadden, Arps, Slate, Mxxxxxx Spidi & Fxxxx, PC Fxxx LLP located at 1000 00xx 4 Xxxxx Xxxxxx, X.X.Xxx Xxxx, Xxxxxxxxxx, X.X. Xxx Xxxx 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors Investor one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 42,626 shares of Series B Preferred Stock against payment by each the Investor of its pro rata share of $16,942,000 42,626,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors Investor will not be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) The consummation of the conditions to closing set forth in Section 1.2(d), delivery of the second closing Second Purchase Price Payment and of the Second Closing Securities (the "“Second Closing"”) shall take place at a time and date the offices of Wachtell, Lipton, Xxxxx & Xxxx, 00 Xxxx 00xx Xxxxxx, Xxx Xxxx, XX, 00000 at 10:00 a.m. (local time), as shall be agreed upon by the parties heretosoon as practicable, but in no event later than the tenth date that is two (2) business day after days following the date of satisfaction or waiver of (to the last extent, and only to the extent, permitted by applicable Law) of the conditions specified set forth in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 000007, or at such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to time and place as the "Company and the Investor shall mutually agree in writing (the “Second Closing Date." (2) Subject to the satisfaction ”). In lieu of the conditions described in Section 1.2(d), at the an in-person Second Closing, the Company will deliver Second Closing may instead be accomplished by e-mail (in PDF format) transmission to the Investors one respective offices of legal counsel for the parties hereto of the requisite documents, duly executed where required, delivered upon actual confirmed receipt, with originals to be delivered as promptly as practicable following the Second Closing. At the Second Closing: (a) the Note and the Securities Issuance Deliverables with respect to the Note shall be automatically released from the Escrow to the Investor (unless the Note has been issued, sold and delivered (through release from the Escrow) to the Investor prior to the Second Closing accordance with Section 2.3); (b) if (x) the FCC Approval shall have been received or more certificates bearing (y) the appropriate legends herein provided for and free and clear FCC Approval shall no longer be required as a result of all Liens representing 16,942 shares the consummation of the FCC Licenses Disposal Actions, the Company shall file with the Secretary of State of the State of Delaware the Series B Preferred Stock against A Certificate of Designations; (c) if (x) the FCC Approval shall have been received or (y) the FCC Approval shall no longer be required as a result of the consummation of the FCC Licenses Disposal Actions, the Investor shall make payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") Price Payment by wire transfer of immediately available United States funds to a bank an account designated by the CompanyCompany at least two (2) business days in advance of the Second Closing Date; provided and (d) if (x) the FCC Approval shall have been received or (y) the FCC Approval shall no longer be required as a result of the consummation of the FCC Licenses Disposal Actions, the Company shall execute and deliver the Securities Issuance Deliverables with respect to the Contingent Payment Right with a Contingent Payment Right Share Number of the Second Closing CPR Share Number; provided, that if the Common Shares issued at Stockholder Approval and all Communications Regulatory Approvals shall have been received, the First Closing and Company shall instead deliver to the Investor certificates or book-entry statements representing the number of shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of set forth in Section 2.2(b)(ii), and the Company or to otherwise control shall execute and deliver the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced Securities Issuance Deliverables with respect to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and Common Stock to the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesInvestor.

Second Closing. The Company shall notify the Purchaser upon achievement of the Milestone. The second Closing Date shall be a Business Day within five (15) Subject Business Days of notice from the Company of the Milestone. On the second Closing Date, upon the terms and subject to the conditions set forth herein, and upon satisfaction (or, where permissible, waiver) of the covenants and conditions set forth in Sections 2.2 and 2.3, the Company agrees to closing sell, and the Purchasers, severally and not jointly, agree to purchase, an aggregate of $7,500,000 of Shares, representing in the aggregate [—%] of the issued and outstanding shares of the Company on a Fully Diluted Basis as of the signing date of this Agreement (for this purpose only, not taking into account the issuances of Shares at the first Closing), whereby each Purchaser, severally and not jointly, agrees to purchase, the number of Shares as specified below such Purchaser’s name on the signature page of this Agreement to be purchased by it at the second Closing, representing the percentage of the issued and outstanding shares of the Company on a Fully Diluted Basis as specified below such Purchaser’s name on the signature page of this Agreement for the second Closing; provided, however, that, to the extent that a Purchaser determines, in its sole discretion, that such Purchaser (together with such Purchaser’s Affiliates, and any Person acting as a group together with such purchaser or any of such Purchaser’s Affiliates) would beneficially own in excess of the Beneficial Ownership Limitation, or as such Purchaser may otherwise choose, in lieu of purchasing Shares such Purchaser may elect to purchase Warrants in lieu of Shares in such manner to result in the same aggregate purchase price being paid by such Purchaser to the Company. Each Purchaser shall deliver to the Company via wire transfer, immediately available funds equal to such Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser, and the Company shall deliver to each Purchaser its respective Shares and the Company and each Purchaser shall deliver the other items set forth in Section 1.2(d)2.2 deliverable at the Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the second closing (Closing shall occur remotely via the "Second Closing") shall take place at a time exchange of documents and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, signature or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Dateshall mutually agree." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1a) Subject to After the satisfaction Initial Closing Date and on or before 30 November 2022 (or, where permissible, waiver) of or such other date as may be agreed between the conditions to closing set forth Company and the Lead Subscriber in Section 1.2(dwriting), the Company shall sell, and the Purchasers named in the table under the heading “Second Closing” in the Schedule of Purchasers attached to this Agreement (the “Additional Purchasers”) shall purchase, Notes at a second closing (the "“Second Closing"” and, together with the Initial Closing, each, a “Closing”) shall take place at a time and to be held on such date as shall may be mutually agreed upon by the parties heretoCompany and the Lead Subscriber (the “Second Closing Date” and, but in no event later than collectively with the tenth business day after Initial Closing Date, the date “Closing Dates”); provided, however, that the aggregate original principal amount of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered all Notes issued pursuant to this Agreement to consummate (for the First avoidance of doubt, including the Notes issued in the Initial Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of ) immediately after the Second Closing is referred to as the "Second Closing Date." Date shall not exceed Twenty Million US Dollars (2) Subject to the satisfaction of the conditions described in Section 1.2(dUS$ 20,000,000.00), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased . All such sales made at the Second Closing shall be reduced made on the terms and conditions set forth in this Agreement; provided, however, that the representations and warranties of the Additional Purchasers in Section 5 hereof shall speak as of such Second Closing Date. This Agreement, including without limitation, the Schedule of Purchasers attached to this Agreement, may be amended by the highest number Company without the consent of Series B Preferred Shares at the Purchasers (but with the consent of the Lead Subscriber) strictly for the purpose of including any Additional Purchasers to accede as a purchase price per share party to this Agreement, such accession to take effect upon the execution by such Additional Purchasers of $1,000 a counterpart signature page hereto. (b) Any Notes sold pursuant to Section 3.2(a) above shall be deemed to be “Notes” for all purposes under this Agreement and any Additional Purchasers thereof shall be deemed to be “Purchasers” for all purposes under this Agreement. The Company shall inform the Directors promptly, in the case of the Second Purchase Price Closing (if any), of any Additional Purchasers and the Purchase Price any Notes sold to them. (c) Each Additional Purchaser shall be reduced accordingly) such that the Investors will not be deemed for purposes obligated to consummate the Second Closing unless all of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities obligations of the Company or and the other Purchasers to otherwise control be performed on Second Closing are performed and in accordance with the Company. Any determinations under the proviso terms of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesthis Agreement.

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to at the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "“Second Closing Date."” (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 an aggregate 22,458 shares of Series B Preferred Stock to be allocated among the Investors as they shall determine in their sole discretion and as provided to the Company in writing prior to the Second Closing, against payment by each Investor of its pro rata share the Investors of $16,942,000 22,458,000 (the "“Second Purchase Price" ” and together with the Initial Purchase Price, the "“Purchase Price"”) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "“Conversion Shares"”) would cause the Investors an Investor or their its Affiliates to be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors such Investor will not be deemed for purposes of the BHC Act to own 1025% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (i) The closing of the purchase of the Second Tranche Purchased Shares (the “Second Closing”) will take place at the offices of K&L Gates LLP, 000 0xx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxxxx, 00000xx at such other place as the Company and the Investors may agree, at such time and on such date in the fourth calendar quarter of 2009 as the Company may specify to the Investors by notice given at least 15 business days in advance of the specified Second Closing Date. In the absence of any notice from the Company, the Second Closing will take place on October 1, 2009. The time and date on which the Second Closing occurs is referred to in this Agreement as the “Second Closing Date;” the First Closing Date and the Second Closing Date may be referred to as a “Closing Date.” (ii) Subject to the satisfaction (or, where permissible, waiver) fulfillment or waiver of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in this Section 1.2(d1.2(b), at the Second Closing, the Company will deliver to the Investors Second Tranche Purchased Shares, as evidenced by one or more certificates dated as of the Second Closing Date and bearing the appropriate legends herein as provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against in this Agreement, in exchange for payment by in full from each Investor of its pro rata share the amount set forth next to the respective Investor’s name on Annex 1.1 (for an aggregate amount of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") 100,000,000). Each Investor will pay by wire transfer of immediately available United States funds to a bank account that has been designated by the Company at least two business days before the Second Closing Date. (iii) The respective obligations of each Investor and the Company to consummate the purchase of the Second Tranche Purchased Shares are subject to the fulfillment (or waiver by the Investors or the Company; provided , as applicable) before the Second Closing of the conditions that: (A) any approvals or authorizations of any Governmental Entities, the absence of which would reasonably be expected to make the Purchase unlawful, will have been obtained or made in form and substance reasonably satisfactory to each party and will be in full force and effect and (B) no provision of any applicable Republic of the Xxxxxxxx Xxxxxxx, Xxxx Xxxx, Xxxxxxxx, Xxxxxx Xxxxxx, or other law and no judgment, injunction, order or decree of any Governmental Entity will prohibit the purchase and sale of the Purchased Shares. (iv) The obligation of the Company to consummate the Second Closing is subject to the fulfillment (or waiver by the Company) at or before the Second Closing of each of the following conditions: (A) the representations and warranties of each Investor set forth in this Agreement will be true and correct as though made on and as of the Second Closing Date (other than representations and warranties that if by their terms speak as of another date, which will be true and correct as of the Common Shares issued at applicable date), except to the extent that the failure of the each Investor’s representations and warranties to be so true and correct does not result in, and would not be reasonably likely to result in, an Investor Material Adverse Effect and (B) the Investors will have performed in all material respects all obligations required to be performed by each of them under this Agreement after the First Closing and before the shares of Common Stock issuable upon the conversion Second Closing. (v) The obligation of the Series B Preferred Shares Investors to consummate the Second Closing is also subject to the fulfillment (or waiver by the "Conversion Shares"Investors) would cause at or before the Investors or their Affiliates to be deemed for purposes Second Closing of each of the BHC Act to own 10% or more of following conditions: (A) the outstanding shares of any class of voting securities representations and warranties of the Company set forth in this Agreement will be true and correct as though made on and as of the Second Closing Date (other than representations and warranties that by their terms speak as of another date, which will be true and correct as of the applicable date), except to the extent that the failure of the Company’s representations and warranties to be so true and correct, does no result in, and would not be reasonably likely to result in, individually or in the aggregate, a Company Material Adverse Effect; (B) the Company will have performed in all material respects all obligations required to otherwise control be performed by it under this Agreement after the First Closing and before the Second Closing and will not have taken any actions in violation of the provisions of the Statement of Designation; and (C) the Investors will have received a legal opinion from Xxxxxx & Xxxxxxx, P.C., Republic of the Xxxxxxxx Islands counsel for the Company, then in substantially the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesform attached as Exhibit E-2.

Second Closing. (1a) Subject only to the satisfaction (or, where permissible, waiver) prior consummation of the conditions to closing Closing and the satisfaction, as of the Second Closing Date, of the condition set forth in Section 1.2(d7.1(a) hereof (provided that, for this purpose, references in Section 7.1(a) to the Closing Date shall be deemed to be references to the Second Closing Date), as soon as practicable after the second date on which WIN has Sufficient RP Capacity to transfer to the WCAS Subs the additional Holdings Shares designated on Schedule II attached hereto as being transferred by WIN to the WCAS Subs at the Second Closing, but in any event no later than December 31, 2008 (or such other time period not earlier than October 15, 2007 as may be specified in the Private Letter Rulings), WIN shall convey, assign, transfer and deliver to each WCAS Sub, and each such WCAS Sub shall receive and accept from WIN, all of WIN’s right, title and interest in and to the Holdings Shares set forth opposite such WCAS Sub’s name on Schedule II attached hereto and designated as being transferred by WIN to such WCAS Sub at the Second Closing, free and clear of all Liens. Subject only to the prior consummation of the Closing and the satisfaction, as of the Second Closing Date, of the condition set forth in Section 7.1(a) hereof (provided that, for this purpose, references in Section 7.1(a) to the Closing Date shall be deemed to be references to the Second Closing Date), in consideration of the aforesaid conveyance, assignment, transfer and delivery of the Holdings Shares at the Second Closing, each WCAS Sub shall convey, assign, transfer and deliver to WIN all of such WCAS Sub’s right, title and interest in and to the number of shares of WIN Common Stock set forth opposite such WCAS Sub’s name on Schedule II attached hereto and designated as being transferred by such WCAS Sub to WIN at the Second Closing, free and clear of all Liens. (b) The closing of the transactions contemplated by this Section 1.7 (the "“Second Closing"”) shall take place at a the offices of WIN at 4000 Xxxxxx Xxxxxx Road, Little Rock, AR 72212, at 10:00 a.m., local time, on the date designated in writing by WIN, which date shall be no later than the earlier to occur of (i) five (5) Business Days after the date on which WIN reasonably determines that it has Sufficient RP Capacity and (ii) December 31, 2008 (or such other time period not earlier than October 15, 2007 as may be specified in the Private Letter Rulings); provided that the condition set forth in Section 7.1(a) is satisfied at that time (provided that, for this purpose, references in Section 7.1(a) to the Closing Date shall be deemed to be references to the Second Closing Date), or at such other place, date and date time as shall be agreed upon in writing by the parties Parties hereto. The Parties hereby acknowledge and agree that, but with the exception of the condition set forth in Section 7.1(a) hereof, all other conditions set forth in Article VII hereof shall no event later than the tenth business day longer be applicable after the date Closing, and such conditions shall not be applicable for purposes of satisfaction determining whether or waiver of when the last of Second Closing shall occur. (c) At the conditions specified in Section 1.2(d)Second Closing, by delivery by facsimile of any documents required (i) WIN shall deliver or cause to be delivered pursuant to this Agreement each WCAS Sub the stock certificate(s) representing the Holdings Shares designated on Schedule II attached hereto as being transferred by WIN to consummate the First WCAS Subs at the Second Closing, duly endorsed or accompanied by stock powers duly executed in blank, and (ii) the WCAS Subs shall deliver or cause to be delivered to WIN the stock certificate(s) representing the Exchanged WIN Shares designated on Schedule II attached hereto as being transferred by the WCAS Subs to WIN at the Second Closing, duly endorsed or accompanied by stock powers duly executed in blank. In addition to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d)foregoing, at the Second Closing, WIN, the Company will Parents and the WCAS Subs shall deliver all other documents, certificates, instruments or other writings, if any, required to be delivered by each of them at or prior to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 Second Closing pursuant to this Agreement. (the "Second Purchase Price" and together with the Initial Purchase Priced) As used in this Agreement, the "Purchase Price"term (i) by wire transfer “RP Capacity” means, as of immediately any date of determination, the amount available United States funds pursuant to a bank account designated Sections 4.07(a) and 4.07(b)(12) of the WIN Indenture for the payment of permitted Restricted Payments (as defined in the WIN Indenture), with such amount to be reduced by the Companyamount of any Restricted Payments made in reliance on Section 4.07(b)(9) of the WIN Indenture; provided that if and (ii) “Sufficient RP Capacity” means the Common amount of RP Capacity necessary for WIN to (x) transfer to the WCAS Subs the Exchanged WIN Shares issued designated on Schedule II attached hereto as being transferred by WIN to the WCAS Subs at the First Second Closing, and (y) declare and pay its regular quarterly dividends consistent with past practice for the fiscal quarter in which the Second Closing occurs and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed next succeeding fiscal quarter; provided, however, that in determining whether Sufficient RP Capacity exists for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Companythis Section 1.7, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall WIN need only take into account up to $25 million of the appropriate regulatory treatment RP Capacity available under Section 4.07(b)(12) of convertible securitiesthe WIN Indenture.

Second Closing. (1) Subject to On the satisfaction (orSecond Closing Date, where permissible, waiver) substantially concurrent with the execution and delivery of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon this Agreement by the parties hereto, but the Company agrees to sell, and the Purchasers, severally and not jointly, agree to purchase, up to an aggregate of up to $[___ million of Class A Units or Class B Units as calculated pursuant to Section 2.2(a). The Second Closing shall occur on, or as soon as reasonably practicable following, and in no any event later than the tenth business day after within 5 Trading days of, the date of satisfaction or waiver of on which, Shareholder Approval is deemed obtained and effective. Notwithstanding anything herein to the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closingcontrary, to the offices extent that a Purchaser determines, in its sole discretion, that such Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of Mxxxxxx Spidi & Fxxxxsuch Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed 4.99% (or, PC located at 1000 00xx Xxxxxxthe election of the Purchaser, X.X.9.99%) of the outstanding Ordinary Shares, Xxxxxxxxxxsuch Purchaser may elect to purchase Class B Units in lieu of Class A Units as determined pursuant to Section 2.2(a); provided, X.X. 00000however, that, in the event that a Purchaser’s Subscription Amount (together with such Purchaser’s Affiliates and any Person acting as a group together with such Purchaser or any of such other date or location Purchaser’s Affiliates) would cause such Purchaser’s beneficial ownership of the Ordinary Shares to exceed 19.99% of the outstanding Ordinary Shares, in lieu of Ordinary Shares in excess of such amount, such Purchaser shall be issued Class B Units as agreed determined pursuant to Section 2.2(a). Each Purchaser’s Subscription Amount as set forth on the signature page hereto executed by such Purchaser shall be made available for “Delivery Versus Payment” settlement with the parties in writingCompany. The date of Company shall deliver to each Purchaser its respective Shares and Warrants as determined pursuant to Section 2.2(a), and the Second Closing is referred to as Company and each Purchaser shall deliver the "Second Closing Date." (2) Subject to the satisfaction of the conditions described other items set forth in Section 1.2(d), 2.2 deliverable at the Second Closing. Upon satisfaction of the covenants and conditions set forth in Sections 2.2 and 2.3, the Second Closing shall occur at the offices of the Placement Agent or such other location as the parties shall mutually agree. Unless otherwise directed by the Placement Agent, settlement of the Shares shall occur via DVP (i.e., on the Second Closing Date, the Company will deliver shall issue the Shares registered in the Purchasers’ names and addresses and released by the Transfer Agent directly to the Investors one or more certificates bearing account(s) at the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment Placement Agent identified by each Investor Purchaser; upon receipt of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Pricesuch Shares, the "Purchase Price"Placement Agent shall promptly deliver electronically such Shares and the Warrants in physical form to the applicable Purchaser, and payment therefor shall be made by the Placement Agent (or its clearing firm) by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that ). The Company covenants that, if the Common Shares issued at the First Closing and the shares Purchaser delivers a Notice of Common Stock issuable upon the conversion of Exercise (as defined in the Series B Preferred Shares Warrants) at least one (the "Conversion Shares"1) would cause the Investors or their Affiliates Trading Day prior to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced Date to the highest number of exercise any Series B Preferred Shares at a purchase price per share of $1,000 (Warrants between the date hereof and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of Closing Date, the Company or shall deliver Ordinary Shares with respect to otherwise control the Company. Any determinations under Series B Warrants to the proviso Purchaser on the Second Closing Date in connection with such Notice of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesExercise.

Second Closing. (1A) Subject Provided that the Initial Closing -------------- shall have occurred, upon the completion of enrollment of clinical trial OP201 for compound being developed by Newco or the Company, EIS shall, subject to obtaining any required approvals under the satisfaction (orMergers Acts, where permissibleHSR Act, waiver) of the conditions to closing set forth in Section 1.2(d)and any similar law and regulation, the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 purchase shares of Series B Preferred Stock against payment by each Investor for an aggregate amount of its pro rata share either US$500,000 or US$1,000,000, which amount shall be at the sole discretion of $16,942,000 EIS (the "Second Purchase Price" "), at a price per share equal to ten times --------------------- the greater of (1) 25% premium over the Average Daily Price for the 60 trading day period immediately prior to the Later Date and together with (2) the Initial Purchase Price, Average Daily Price for the last trading day prior to the Later Date (the greater being the "Purchase Later Stock Price") by wire transfer ). The term "Average Daily ----------------- Price" shall mean the amount equal to the average of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing highest and the shares of lowest trade price for Incara Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of on a given trading day. In addition, EIS shall purchase from the Company or warrants to otherwise control the Company, then the number acquire shares of Series B Preferred Shares Stock equal to 20% of the shares of Series B Preferred Stock purchased at the Second Closing, in the form attached hereto as Exhibit G (the "Later Incara Warrants"). Notwithstanding the above, in no event during the life of this Agreement shall the number of shares of Series B Preferred Stock purchased or underlying warrants issued in the Second Closing (it being understood that the warrants to be issued in the Second Closing shall be exercisable for a number of shares of Series B Preferred Stock equal to 20% of the number of shares of Series B Preferred Stock purchased in the Second Closing) exceed 150,000 shares (as such number may be adjusted for stock splits, combinations, recapitalizations, reclassifications and dividends effected subsequent to December 21, 2000, the "Second Closing Maximum ---------------------- Shares"), which represents less than 20% of the Incara Common Stock ------ issued and outstanding on December 21, 2000 (on an as converted basis). If this limitation on the amount of Series B Preferred Stock is triggered, the Second Purchase Price shall not be US$500,000 or US$1,000,000, as selected by EIS, but instead shall be equal to the Later Stock Price multiplied by the quotient of (i) the Second Closing Maximum Shares divided by (ii) 1.2, and the purchase of Series B Preferred Stock by EIS at the Second Closing shall be reduced in the sole discretion of EIS. At the Second Closing (i) EIS shall pay the Second Purchase Price by wire transfer of the Second Purchase Price to an account designated in writing by the highest number Company, (ii) the Company shall cause to be delivered to EIS (A) certificates representing the shares of Series B Preferred Shares at Stock issued to EIS, (B) the Later Incara Warrants, (C) a purchase price per share of $1,000 (and customary secretary's certificate from the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes secretary of the BHC Act Company, including certification as to own 10% or more the incumbency of the outstanding shares of any class of voting securities officers of the Company executing any documents, (D) an officer's certificate certifying and confirming that the conditions described in Section 1(f)(B)(i)-(iii) below have been satisfied, (E) an opinion of counsel to the Company reasonably satisfactory to EIS, and (iii) either EIS or to otherwise control the Company shall deliver any other documents or instruments reasonably requested by a party hereto." 1.2 Section 5(b) of the Purchase Agreement is hereby amended by replacing the last sentence of Section 5(b) with the following: "At all times that EIS or any of its Affiliates does not have its own designee sitting on the Company's Board of Directors, the Company shall use its best efforts to ensure that EIS or such Affiliate of EIS (or their respective permitted transferee or assignee) shall be entitled to appoint an observer to attend each meeting of the Company's Board of Directors (the "Board"), to receive notices of each meeting of the Board (or action to be taken by written consent of the Board) and to receive copies of all materials provided to all members of the Board as a group. Any determinations Such observer shall be subject to the same confidentiality provisions as apply to any director of EIS pursuant to Clause 21 of the Subscription, Joint Development and Operating Agreement among Elan Corporation, PLC, Elan Pharma International, Ltd., EIS and the Company." 1.3 Section 16 of the Purchase Agreement is hereby amended by replacing the last sentence thereof with the following: "Other than as set forth above, no party shall assign or transfer all or any part of this Agreement, the Securities and the Underlying Shares, or any interest therein, without the prior written consent of the other party; provided that, consent of the Company shall not be required in connection with the sale, transfer or other disposition of any Securities or the Underlying Shares in the event that such Securities or the Underlying Shares are the subject of a registration statement filed with the SEC or are eligible to be sold under Rule 144 promulgated under the proviso of Securities Act, as such rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSEC."

Second Closing. (1a) Subject If at any time on or prior to September 30, 2024: (i) the satisfaction (or, where permissible, waiver) Company publicly announces the results of its Niyad pivotal trial and following such announcement the average VWAP of the conditions Common Stock for each of the immediately subsequent five (5) Trading Days (even if subsequent to closing set forth in Section 1.2(d)September 30, 2024) is at least $0.92 per share (as adjusted for reverse and forward stock splits, stock dividends, stock combinations and other similar transactions of the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day Common Stock that occur after the date of satisfaction or waiver this Agreement and prior to the Second Closing Date (which is 120% of the last Per Share Purchase Price)) or (ii) the Company receives written notice from a Purchaser waiving subsection (i) above and desires to effect the Second Closing (as to the Subscription Amount of the conditions specified in Section 1.2(dsuch waiving Purchaser only), by delivery by facsimile then the Company will promptly distribute (and in any event within two (2) Trading Days of any documents required such public announcement or receipt of such written notice) to be delivered pursuant to this Agreement to consummate each Purchaser a notice identifying the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred (the “Second Closing Notice”). (b) On or prior to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will shall deliver or cause to be delivered to each Purchaser participating in the Second Closing (the “Participating Purchaser”) the following: (i) the Company shall have provided each Participating Purchaser with the Company’s wire instructions; (ii) a copy of the irrevocable instructions to the Investors one or more certificates bearing Transfer Agent instructing the appropriate legends herein provided Transfer Agent to establish via the direct registration system a book-entry notation for and free and clear that number of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (Shares equal to such Participating Purchaser’s Second Closing Subscription Amount applicable to the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated Shares divided by the Company; provided that if Per Share Purchase Price and registered in the Common Shares issued at name of such Purchaser (minus the First Closing and the number of shares of Common Stock issuable upon exercise of such Purchaser’s Pre-Funded Warrants, if applicable); and (iii) if applicable, for each Participating Purchaser of Pre-Funded Warrants pursuant to Section 2.1, a Pre-Funded Warrant registered in the conversion name of such Purchaser to purchase up to a number of shares of Common Stock equal to the Series B Preferred Shares portion of such Participating Purchaser’s Second Closing Subscription Amount applicable to Pre-Funded Warrants divided by the Per Share Purchase Price minus $0.001, with an exercise price equal to $0.001 per share of Common Stock, subject to adjustment therein. (c) On or prior to the "Conversion Shares") would Second Closing Date, each Participating Purchaser shall deliver or cause the Investors or their Affiliates to be deemed for purposes of the BHC Act delivered to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the such Participating Purchaser’s Second Closing shall be reduced Subscription Amount by wire transfer to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control account specified in writing by the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.

Second Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing condition set forth in Section 1.2(d)8.5 hereof, the second closing Purchase Price shall be adjusted downward and the adjusted purchase price (the "ADJUSTED PURCHASE PRICE") shall be the result representing (x) Fifty Three Million US Dollars divided by (y) the number of the Closing Shares (including the number of Series A Convertible Preference Shares to be issued at the Second Closing). The Company shall issue to each of the Investors such additional number of Series A Convertible Preference Shares for no additional consideration so that the total number of Series A Convertible Preference Shares owned by each Investor will equal to the result representing (x) the Investor Aggregate Purchase Price divided by (y) the Adjusted Purchase Price. In addition, Good Energies shall purchase from the Company and the Company shall issue to Good Energies that number of Series A Preference Shares at the Adjusted Purchase Price for an aggregate purchase price of Five Million US Dollars (US$5,000,000). The number of additional Series A Convertible Preference Share issued to each Investor under this Section 2.4 is set forth in Exhibit A-2 hereto. (b) The closing for the issuance of additional Series A Convertible Preference Shares under this Section 2.4 (the "SECOND CLOSING") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day soon as practical after the date of satisfaction or waiver of the last of the conditions specified condition set forth in Section 1.2(d), by delivery by facsimile 8.5 of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d)satisfied and, at the Second Closing, the Company will shall deliver or cause to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by be delivered to each Investor of its pro rata (i) a share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to certificate in a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series form attached hereto as Exhibit B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then representing the number of Series B Preferred A Convertible Preference Shares issued to such Investor under this Section 2.4 and (ii) a copy of the Company's register of members certified by an authorized officer of the Company on which such Investor shall be purchased at registered as a record owner of the number of Series A Convertible Preference Shares issued to such Investor under this Section 2.4. In the event that the Second Closing shall be reduced to takes place in accordance with the highest number terms and conditions of Series B Preferred Shares at a purchase price per share of $1,000 (and this Agreement, the Second Investor Initial Share Percentage, Investor Aggregate Purchase Price and the Purchase Price RMB Investment Amount with respect to Good Energies shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act reflected to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account Good Energies' aggregate investment amount at both the appropriate regulatory treatment Closing and the Second Closing. The Investor Initial Share Percentage, Investor Aggregate Purchase Price and RMB Investment Amount upon the Second Closing are also set forth in Exhibit A-2 of convertible securitiesthis Agreement.

Second Closing. (1a) Subject to the satisfaction (or, where permissible, waiver) The Closing of the conditions to closing sale and purchase of the Shares as set forth in Section 1.2(d), on Exhibit A under the second closing heading "Second Closing" (the "Second Closing") -------------- shall take place at the offices of a time Handler Xxxxxxxx Xxxxxx Landau & Xxxxxx, 00 Xxxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, within thirty (30) days after the Second Closing Conditions (as defined below) are met (the "Second Closing -------------- Date"). The First Closing and date the Second Closing are sometimes referred to ---- hereinafter collectively as the "Closings" and individually as a "Closing". The -------- ------- parties hereto acknowledge that the price per Share to be paid by the Purchasers at the Second Closing (the "Second Closing Price") shall be agreed upon $15,000,000 divided by (4,595,066+a) if the Purchasers reasonably determine that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have been fulfilled --------- within 90 days after the First Closing and $12,000,000 divided by (4,595,066+x) per Share if the Purchasers reasonably determine that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have been fulfilled 90 days or more --------- after the First Closing. As used in the preceding sentence, 'x' equals the number of Shares sold at the First Closing. Thus, if 540,541 Shares are sold at the First Closing and the milestone conditions set forth on Exhibit C are --------- fulfilled within 90 days after the First Closing, the price per Share payable by the parties hereto, but in no event later than Purchasers at the tenth business day after the date of satisfaction or waiver Second Closing shall be $2.92 per Share. (a) The obligation of the last Purchasers to purchase Shares at the Second Closing is conditioned upon fulfillment of the milestone conditions set forth on Exhibit C hereto (the "Second Closing Conditions"). At the Second Closing, the --------- ---------------------------- Company will deliver to each of the Purchasers a certificate for the number of shares being purchased by such Purchaser, registered in the name of such Purchaser, against payment to the Company of the purchase price therefor, by wire transfer, check, or other method acceptable to the Company. If at the Second Closing any of the conditions specified in Section 1.2(d7 shall not have been fulfilled, each of the Purchasers shall, at his or its election, be relieved of all of his or its obligations under this Agreement without thereby waiving any of the rights he or it may have by reason of such failure or such non- fulfillment. (c) Notwithstanding the provisions of Sections 2.2(a) and (a) above, upon a reasonable determination by the Purchasers prior to December 31, 1989 that the milestone conditions set forth as paragraphs 1 and 2 of Exhibit C have --------- been fulfilled, the Purchasers shall deposit with Xxxx and Xxxx ("Escrow Agent") ------------ the amount of the purchase price set forth on Exhibit A under the heading --------- "Second Closing." Such amount shall be held by Escrow Agent pursuant to the terms of an Escrow Agreement in the form of Exhibit D until the earlier of (a) --------- receipt by Escrow Agent of a notice signed on behalf of the Company and each Purchaser that the milestone condition set forth as paragraph 3 of Exhibit C has --------- been fulfilled (the "Confirmation Notice"), by delivery by facsimile or (ii) June 30, 1990. If the ------------------- Escrow Agent receives the Confirmation Notice prior to June 30, 1990, the Escrow Agent shall pay such escrowed amount, plus all interest earned thereon, to the Company. If the Escrow Agent does not receive the Confirmation Notice prior to June 30, 1990, the Escrow Agent shall pay such escrowed amount, plus all interest earned thereon, to the Purchasers and all obligations of any documents required the Purchasers with respect to the Second Closing shall cease. (a) Notwithstanding the provisions of Section 2.2(a), affiliates of GenAm (U.S.), Inc., Advent International Corporation, a Venture Capital Corporation, Xxxxxx Xxxxxxxxx Associates or Ventures West Management III, Ltd. shall have the right to purchase Shares at the First Closing Price and shall be delivered pursuant deemed to this Agreement to consummate have purchased such Shares at the First Closing, to if such Shares are purchased within thirty (30) days after the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writingFirst Closing. The date parties hereto acknowledge that the Company shall have the right prior to December 31, 1989 to issue and sell Shares to entities who are not parties to this Agreement, which such entities shall be entitled to all of the rights of Purchasers hereunder, provided that the purchase of Shares by such entities is approved by at least two-thirds (2/3) of the Purchasers, that such entities pay the Second Closing is referred Price for such Shares and that such entities agree to as the "Second Closing Date." (2) Subject to the satisfaction be bound by all of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear obligations of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesPurchasers hereunder.

Second Closing. The “Second Closing Date” shall mean the date of the issuance and sale of 1,780,149 of the Shares (1the “Second Closing Shares”, subject to appropriate adjustments for any stock dividend, stock split, stock combination, rights offerings, reclassification or similar transaction that proportionately decreases or increases the Common Stock) Subject by the Company to Buyer (the “Second Closing”), which shall occur on or before the date that is fourteen (14) calendar days after the First Effectiveness Date (as defined in this Agreement), at such location as may be agreed to by the Company and Buyer (including via exchange of electronic signatures), subject to the satisfaction (or, where permissible, or written waiver) of the conditions to closing thereto set forth in Sections 5 and Section 1.2(d6 of this Agreement, and the Additional Second Closing Conditions (as defined in this Agreement), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of On the Second Closing is referred Date, the Company shall issue and sell to the Buyer, and the Buyer agrees to purchase from the Company, the Second Closing Shares, as further provided in this Agreement. On the "Second Closing Date." : (2i) Subject to the satisfaction of Buyer shall pay the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share purchase price of $16,942,000 1,050,287.91 (the "“Second Purchase Price" and together with ”) for the Initial Purchase PriceSecond Closing Shares, the "Purchase Price") by wire transfer of immediately available United States funds to the Company, in accordance with the Company’s written wiring instructions attached hereto as Exhibit E, and (ii) the Company shall issue the Second Closing Shares to the Buyer without any restrictive legend on the Second Closing Date. Further, the Buyer shall withhold $20,000.00 from the Second Purchase Price to cover the Buyer’s legal fees in connection with the transactions contemplated by this Agreement. Notwithstanding the foregoing, if the Buyer would beneficially own in excess of the Beneficial Ownership Limitation as a bank account designated result of the issuance of the Second Closing Shares as determined in accordance with Section 13(d) of the 1934 Act, then in lieu of receiving the portion of the Second Closing Shares in excess of the Beneficial Ownership Limitation, such Buyer shall instead receive pre-funded common stock purchase warrants in the form attached hereto as Exhibit D, to purchase the number of Second Closing Shares in excess of the Beneficial Ownership Limitation (the “Second Closing Pre-Funded Warrants”). The “Additional Second Closing Conditions” shall mean (i) the Company has not breached any covenant, agreement, or other term or condition contained in the Agreement, Registration Rights Agreement (as defined in this Agreement), or any document, agreement, or instrument contemplated thereby, (ii) the Common Stock is listed for trading on the Nasdaq Capital Market (“Nasdaq CM”) and is not suspended or halted from trading, (iii) the Company is in compliance with all of the listing standards of Nasdaq CM, (iv) the initial Registration Statement (as defined in the Registration Rights Agreement) (a) shall be declared effective by the Company; provided SEC on or before the date that if is sixty (60) calendar days from the Common Shares issued at date of this Agreement and shall still be effective as of the Second Closing Date, and (b) shall include all of the First Closing Shares, Common Stock underlying the First Closing Pre-Funded Warrants, Second Closing Shares, and Common Stock underlying the Second Closing Pre-Funded Warrants for the Buyer’s resale at prevailing market prices, and (v) Nasdaq official closing price of the Common Stock must be at least $1.20 per share (subject to appropriate adjustments for any stock dividend, stock split, stock combination, rights offerings, reclassification or similar transaction that proportionately decreases or increases the Common Stock) on each of the five (5) Trading Days (as defined in this Agreement) prior to the Second Closing Date. “Trading Day” shall mean any day that shares of Common Stock issuable upon are listed for trading on the conversion of Nasdaq CM. “First Effectiveness Date” shall mean the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such first date that the Investors will not be deemed for purposes of initial Registration Statement (as defined in the BHC Act to own 10% or more of Registration Rights Agreement (as defined in this Agreement)) is declared effective by the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesSEC.

Second Closing. (1a) Each of the Persons listed on SCHEDULE 1 hereto under the caption "Second Closing" shall have the option, at such Person's sole discretion, to purchase at the Second Closing (as defined below) the number of shares of Series B Preferred or Series C Preferred set forth opposite such Investor's name on SCHEDULE 1 attached hereto under the caption "Second Closing" at a price of $100.00 per share, subject to the terms and conditions set forth herein. In the event that not every Person listed on SCHEDULE 1 hereto under the caption "Second Closing" exercises its option to purchase Shares at the Second Closing (as defined below), the Company may, at its discretion, sell to one or more of the Investors (on a pro rata basis or on such other basis, and on such terms and conditions, as the Company and the Investors unanimously may agree in writing) and/or to such other Persons, and on such terms and conditions, as the Company and the Investors may unanimously agree in writing, up to the remaining number of authorized but unissued Shares. (b) Subject to the satisfaction (or, where permissible, waiver) or waiver of the terms and conditions set forth herein (and, in the case of each of General Electric Capital Corporation and Electronic Data Systems Corporation, subject to closing the satisfaction or waiver of the terms and conditions set forth in Section 1.2(dthe letter agreement between the Company and each such Person relating to such Person's option to purchase up to 20,000 shares of Series B Preferred), the second closing (purchase and sale of the "Second Closing"Shares described in Section 2.2(a) above shall take place at a such time and place and on such date as shall be agreed upon by the parties hereto, (but in no event later than September 5, 1997) as the tenth business day after Company and the Persons purchasing such Shares may mutually agree orally or in writing (which time, place and date are designated herein as the "Second Closing" and the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to thereof as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at . At the Second Closing, the Company will shall deliver to each the Investors one Person purchasing Shares on the Second Closing Date a certificate or more certificates bearing representing the appropriate legends herein provided for and free and clear of all Liens representing 16,942 shares of Series B Preferred Stock or Series C Preferred that such Person is purchasing on the Second Closing Date against payment of the purchase price therefor by each Investor of its pro rata share of $16,942,000 (certified check payable to the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") Company or by wire transfer of immediately available United States federal funds to a bank such account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of as the Company or may designate in writing to otherwise control the Company, then the number of Series B Preferred Shares such Person at least two business days prior to be purchased at the Second Closing shall be reduced to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesDate.

Second Closing. (1a) On the terms and conditions set forth in this Agreement, the closing of the Tranche 2 Purchase (the “Second Closing”) shall occur at 10:00 am New York City time on the thirteenth (13th) Business Day after (or such other date and time as is mutually agreed to by the parties) the Company delivers a written notice to the Purchaser in the form attached hereto as Exhibit A stating that the Company is electing to consummate the Second Closing (which notice must be delivered on or prior to December 11, 2020 (the “Final Notice Date”)), by the electronic exchange of documents (the date on which the Second Closing occurs is referred to herein as the “Second Closing Date”). (b) At the Second Closing: (i) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Purchaser’s compliance with Section 1.2(d2.03(b)(ii), the second closing (the "Second Closing") Company shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described in Section 1.2(d), at the Second Closing, the Company will deliver to the Investors one or more certificates bearing Purchaser the appropriate legends herein provided for and Tranche 2 Securities registered in the name of any Purchaser, free and clear of all Liens representing 16,942 (except for any restrictions on ownership and transfer imposed by the Company Charter Documents, the Securities Act and any applicable securities Laws) and record the Purchaser as the owner of such Tranche 2 Securities on the books and records of the Company. (ii) Subject to the Company’s compliance with Section 2.03(b)(i) and the satisfaction or waiver of the conditions set forth in Section 2.03(c), the Purchaser shall pay the Tranche 2 Purchase Price to the Company, by wire transfer in immediately available U.S. federal funds, to an account designated by the Company in writing. (c) The obligation of the Purchaser to consummate the Second Closing is subject to the satisfaction or waiver by Purchaser of the following conditions: (i) the Dividends as of the most recent prior Dividend Payment Date (as such capitalized terms are defined in the Articles Supplementary) on any shares of Series B Preferred Stock against payment held by each Investor Purchaser are not then in arrears and the Company is not then in default under, or otherwise then in breach of, any of its pro rata share the Transaction Documents; (ii) after giving effect to the Second Closing and the Company’s intended use of $16,942,000 (the "Second Purchase Price" and together with the Initial Tranche 2 Purchase Price, to the "Purchase Price") by wire transfer Knowledge of immediately available United States funds to a bank account designated by the Company, the Company is not then in default under, or then in breach of any covenants of, any of the Debt Financing Facilities or any debt financing facility of the Company entered into after the First Closing; (iii) (A) each of the Fundamental Representations shall be true and accurate in all material respects as of the Second Closing Date as if made on and as of the Second Closing Date (other than any such representations and warranties which by their terms are made as of a specific earlier date, which shall have been true and accurate in all material respects as of such earlier date); provided that if the Common Shares issued at (B) from the First Closing Date through the Second Closing Date, there shall not have occurred any Material Adverse Effect; and the shares of Common Stock issuable upon the conversion (C) each of the Series B Preferred Shares other representations and warranties made by the Company in this Agreement shall be true and accurate in all respects as of the Second Closing Date as if made on and as of the Second Closing Date (the "Conversion Shares") would cause the Investors or other than any such representations and warranties which by their Affiliates terms are made as of a specific earlier date, which shall have been true and accurate in all respects as of such earlier date), other than failures to be deemed true and accurate that have not resulted in a Material Adverse Effect; provided, however, that, in the case of each of the foregoing clause (C), for purposes of determining the BHC Act to own 10% or more accuracy of such representations and warranties, all materiality and similar qualifications limiting the outstanding shares scope of any class of voting securities of such representations and warranties shall be disregarded; (iv) the Purchaser shall have received from the Company a certificate from a secretary or to otherwise control an executive officer of the Company, then the number dated as of Series B Preferred Shares to be purchased at the Second Closing shall be reduced Date, to the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such effect that the Investors will not be deemed for purposes each of the BHC Act to own 10% or more conditions specified in clauses (i) through (iii) of this Section 2.03(c) has been satisfied; and (v) the outstanding shares of any class of voting securities of Purchaser shall have received from the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesa REIT Opinion and a Company Counsel Opinion.

Second Closing. The Second Closing shall take -------------- place on the earlier to occur of (1i) Subject the date that is ten (10) business days after the date that the Company provides written notice to Investor of its desire to effect the satisfaction Second Closing; or (orii) March 31, where permissible2000 at the offices of Xxxxxxx, waiver) of the conditions to closing set forth in Section 1.2(dPhleger & Xxxxxxxx LLP, 2200 Geng Road, Two Xxxxxxxxxxx Xxxxx, Xxxx Xxxx, Xxxxxxxxxx 00000 at 10:00 a.m. (Pacific Time), or at such other time and place as the second closing Company and the Investor mutually agree upon orally or in writing (the "Second Closing") shall take place at a time , and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate collectively with the First Closing, a "Closing"). Subject to the offices terms and conditions of Mxxxxxx Spidi & Fxxxxthis Agreement, PC located Investor agrees to purchase at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred and the Company agrees to as the "Second Closing Date." (2) Subject sell and issue to the satisfaction of the conditions described in Section 1.2(d), Investor at the Second Closing, the Company will deliver to the Investors one or more certificates bearing the appropriate legends herein provided for and free and clear a purchase price of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of five million dollars ($16,942,000 5,000,000) (the "Second Purchase Price"), that number of shares of Common Stock (the "Second Closing Shares" and together with the Initial Purchase Price, First Closing Shares the "Purchase PriceShares") as is determined by wire transfer of immediately available United States funds to a bank account designated dividing five million dollars ($5,000,000) by the Company; provided that if average of the closing bid and ask price per share for the Common Shares issued Stock as quoted on the Nasdaq National Market System, or such national securities exchange or over-the-counter trading system on which the Common Stock is traded at such time, on the First Closing and four trading days immediately preceding the date of the Second Closing; provided, however, that the Company will not issue any fractional shares of Common Stock issuable upon Stock. Any such fractional shares will be rounded to the conversion of nearest whole share. Notwithstanding the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Companyforegoing, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced (whether such Second Closing occurs pursuant to subpart (i) or (ii) above), the Company may, at its option, deliver to the highest number Investor, by check or wire transfer, payment in the amount of Series B Preferred Shares at a purchase price per share five million dollars ($5,000,000) (the "Cash Option") in lieu of $1,000 (and delivering the Second Purchase Price Closing Shares, and the Purchase Price such payment shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control satisfy in full the Company. Any determinations 's obligations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesthis Section 1.1(b).

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the The second closing (the "“Second Closing"”) shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi Xxxxxx & FxxxxXxxxx LLC, PC located at 1000 00xx Xxxxxx000 X. Xxxxxx Street, X.X.Chicago, XxxxxxxxxxIllinois 60606 on the second business day following the date on which the applicable conditions set forth in Section 5.2, X.X. 00000including 5.2.7, and Section 6 shall have been satisfied or such other date or location as agreed waived by the parties in writingappropriate parties. The date At the Second Closing: (a) Each Purchaser shall deliver its Demand Notes for cancellation and the Company shall deliver to each Purchaser certificates representing the Conversion Shares to which such Purchaser is entitled as a result of the Second Closing is referred to as conversion of the "Second Closing DateDemand Notes." (2b) Subject to the satisfaction of the conditions described in Section 1.2(d), at From and after the Second Closing, the Company will Demand Notes shall represent solely the right to receive the Conversion Shares in accordance with this Agreement, and no further obligations shall accrue or exist under the Demand Notes. Upon delivery of the Conversion Shares to the Purchasers, all liens, pledges, security interests and other encumbrances under the Security Documents shall be terminated and released, and each Purchaser shall execute and deliver to the Investors one or more certificates bearing the appropriate legends herein provided for Company termination statements, releases of liens and free similar interests and clear of in all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together other reasonable respects shall cooperate with the Initial Purchase Price, the "Purchase Price"Company to effect such termination and release. (c) by wire transfer of immediately available United States funds If a Purchaser has lost its Demand Note(s) and is unable to a bank account designated by the Company; provided that if the Common Shares issued deliver its Demand Notes at the First Initial Closing, it shall submit an affidavit of loss and indemnity agreement so that the Demand Notes may be replaced and deemed cancelled in accordance with the terms hereof. In the event that as a result of the Debt Conversion, fractions of shares would be required to be issued, such fractional shares shall be rounded up to the nearest whole share. The Initial Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at the Second Closing shall be reduced are collectively referred to herein as the highest number of Series B Preferred Shares at “Closings” and individually as a purchase price per share of $1,000 (and “Closing.” The date on which the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act Closings occur are referred to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesherein as a “Closing Date.”

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) 4.2.1 The closing of the conditions to closing set forth in Section 1.2(d)issuance by the Company, and acquisition/purchase by the second closing Purchasers, of the Preferred Shares and Additional Preferred Shares hereunder (the "Second SECOND Closing") shall take place (a) at a time and date as shall be agreed upon by the parties heretooffices of Browxxxxxx Xxxtx & Xarbxx, but in no event later than X.C., 410 00xx Xxxxxx, Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, xx the tenth business forty-sixth (46th) day after immediately following the date of satisfaction or waiver of the last FCC Approval Date, provided that all of the conditions specified to the Second Closing, as set forth in Section 1.2(d)9 below, by delivery by facsimile have been fully satisfied as of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, that date (or one or more such other date or location as agreed conditions have been waived by the parties in writing. The date Purchasers and/or the Company, as the case may be) or, if all of such conditions to the Second Closing is referred to have not been satisfied (or waived, as the "Second Closing Date." case may be) by such forty-sixth (246th) Subject day, then on the first day thereafter that all of such conditions have been fully satisfied (or waived as the case may be) or (b) at such other place and time as may be mutually agreeable to the satisfaction of Company and the conditions described in Section 1.2(d), at Purchasers. At the Second Closing, the Company will shall deliver to each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Investors one or more Company) stock certificates bearing evidencing the appropriate legends herein provided for Preferred Shares and free and clear of all Liens representing 16,942 shares of Series B Additional Preferred Stock against payment by Shares it is acquiring hereunder (in each Investor case in the number set forth opposite each Purchaser's name on SCHEDULE II hereto) upon receipt (a) from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Company) of its pro rata share of $16,942,000 Note (for which the Preferred Shares are being issued pursuant to the Note Conversion procedures set forth in Section 5.4 below) marked "Second Purchase PricePaid In Full" and together with (b) payment from each Purchaser (other than a Purchaser that has timely delivered a Notice Not to Close to the Initial Purchase Price, Company) of the "Purchase Price"aggregate purchase price for its Additional Preferred Shares (as set forth on SCHEDULE II hereto) by a cashier's or certified check or by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if 's account at Norwest Bank of Colorado, ABA #102000000, Xxcount #1078000000, Xxntact: Paul Xxxxxxxx. Xxch stock certificate evidencing the Common Preferred Shares and Additional Preferred Shares issued at the First Closing and the shares of Common Stock issuable upon the conversion of the Series B Preferred Shares to each Purchaser (the "Conversion Shares") would cause the Investors or their Affiliates other than a Purchaser that has timely delivered a Notice Not to be deemed for purposes of the BHC Act Close to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company), then the number of Series B Preferred Shares upon issuance to be purchased at the Second Closing thereof, shall be reduced to duly executed by an authorized officer or officers, as the highest number case may be, of Series B Preferred Shares at a purchase price per share of $1,000 (and the Second Purchase Price and the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under Notwithstanding anything herein to the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securities.contrary, any Purchaser that timely delivers a Notice Not

Second Closing. (1) Subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d), the second closing (the "Second Closing") shall take place at a time and date as shall be agreed upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2a) Subject to the satisfaction of each of the conditions described set forth in PARAGRAPH (C) below, on a date and at a place mutually acceptable to the Company and TIG but in no event more than three (3) business days following satisfaction of the condition set forth in clause (i) of PARAGRAPH (C) below, the Company will issue and sell to TIG, and TIG will purchase from the Company, 2,912,908 shares of Series I Preferred Stock (the "SERIES I PREFERRED SHARES" and, together with the Class B Shares, the "PURCHASED SHARES"), at a purchase price of $1.00 per share. At the closing of the purchase and sale of the Series I Preferred Shares under this Section 1.2(d(the "SECOND CLOSING"), the Company shall deliver to TIG a certificate or certificates representing the Series I Preferred Shares registered in the name of TIG, and TIG shall pay the aggregate purchase for the Series A Preferred Shares by (i) paying to the Company $2,000,000 by wire transfer in immediately available United States funds to an account designated by the Company and (ii) delivering to the Company for cancellation the B Note (as defined in the Term Loan Agreement). The Company shall cancel the B Note upon receipt thereof and the B Note shall be deemed discharged in full. In addition, at the Second Closing, the Company will shall exchange, on a share for share basis, all of the Class B Shares held by TIG for shares of Common Stock (the "EXCHANGE"). TIG shall deliver to the Investors one Company the certificate or more certificates bearing representing the appropriate legends herein provided for Class B Shares and free and clear of all Liens the Company shall deliver to TIG a certificate or certificates representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon issued in exchange therefore. (b) Following the conversion First Closing, TIG and the Company shall cooperate with each other in seeking to obtain all approvals from the Florida Department of Insurance (the "FDOI") necessary or required in order to consummate the sale of the Series B I Preferred Shares and to effect the Exchange, and each of TIG and the Company shall agree to any reasonable conditions imposed on it by the FDOI in order to obtain such approvals. (c) The obligation of TIG to consummate the "Conversion Shares"purchase and sale of the Series I Preferred Shares shall be subject to the satisfaction of each of the following conditions: (i) would cause TIG shall have determined, in its sole discretion, that all regulatory approvals necessary or required in order to consummate the Investors purchase and sale of the Series I Preferred Shares and to effect the Exchange (including all necessary approvals of the FDOI) have been obtained; (ii) no court of competent jurisdiction or their Affiliates to other competent Governmental or Regulatory Authority (as defined in SECTION 2.04(A)) shall have enacted, issued, promulgated, enforced or entered any Law or Order which has the effect of making illegal or otherwise restricting, preventing or prohibiting consummation of the purchase and sale of the Series I Preferred Shares or the Exchange; (iii) the representations and warranties made by the Company in this Agreement shall be deemed true and correct in all material respects as of the date of the Second Closing or, in the case of representations and warranties made as of a specified date earlier than the date of the Second Closing, on and as of such earlier date; (iv) no Default or Event of Default (each as defined in the Term Loan Agreement) shall have occurred and be continuing; PROVIDED, that for purposes of satisfying this condition, the BHC Act transactions contemplated by PARAGRAPH (A) above will be deemed to own 10% or more have been effected on the First Closing Date; (v) the Company shall have amended the Articles of Incorporation as provided in EXHIBIT C hereto; and (vi) all corporate proceedings to be taken on the outstanding shares of any class of voting securities part of the Company or in connection with the issuance and the sale of the Series I Preferred Shares to otherwise control TIG and the Exchange and all documents incident thereto shall be reasonably satisfactory in form and substance to TIG and the Company, then and TIG shall have received copies of all such documents and other evidence as TIG may reasonably request in connection with such proceedings, including a certificate executed on behalf of the number Company by a duly authorized officer stating that the conditions set forth in clauses (iii), (iv) and (v) above have been satisfied. (d) Notwithstanding anything in this SECTION 1.04 to the contrary, the obligation of TIG to purchase the Series B I Preferred Shares and effect the Exchange shall terminate, without liability on the part of either party under this SECTION 1.04 other than by reason of its breach of any provision hereof, on the earlier to be purchased occur of (i) the date of issuance of a final nonappealable order of the FDOI denying approval of the transactions contemplated by PARAGRAPH (A) above and (ii) March 4, 1997 (such earlier date, the "REPURCHASE DATE"). (e) On the business day next following the Repurchase Date, at the Second Closing shall be reduced offices of the Company unless otherwise agreed, TIG will sell to the highest number of Series B Preferred Shares Company, at a purchase price per share of $1,000 1.00 per share, a number of shares of Class B Common Stock such that immediately following such sale, TIG will own 28.89% of the total number of shares of Common Stock and Class B Common Stock outstanding on a fully diluted basis (and excluding shares issuable upon conversion of the Second Purchase Price and loan outstanding under the Purchase Price Term Loan Agreement), by delivering to the Company a certificate or certificates representing such shares. In consideration for such sale, the principal amount of the B Loan Note (as defined in the Term Loan Agreement) shall be reduced accordingly) increased by an amount equal to the aggregate purchase price for such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesshares.

Second Closing. (1) Subject Upon the terms and subject to the satisfaction (or, where permissible, waiver) of the conditions to closing set forth in Section 1.2(d)this Agreement, the second closing (the "Second Closing"Closing ) shall take place at a time and date within five (5) days following the Milestone Target Payment Date applicable to Milestone 1 (as shall be agreed defined in the Joint Development Agreement) upon by the parties hereto, but in no event later than the tenth business day after the date of satisfaction or waiver of the last of the conditions specified in Section 1.2(d), by delivery by facsimile of any documents required to be delivered pursuant to this Agreement to consummate the First Closing, to the offices of Mxxxxxx Spidi & Fxxxx, PC located at 1000 00xx Xxxxxx, X.X., Xxxxxxxxxx, X.X. 00000, or such other date or location as agreed by the parties in writing. The date of the Second Closing is referred to as the "Second Closing Date." (2) Subject to the satisfaction of the conditions described set forth in Section 1.2(d5.2 and Section 6.2 applicable to the Second Closing (or such other time and place as the Parties may agree) (the Second Closing Date ). At the Second Closing, the following shall occur: (a) in the event the Purchaser elects to purchase Series B Preferred at the Second Closing, the Purchaser shall deliver to the Company an amount in United States dollars ( U.S. Dollars ) in immediately available funds that is not greater than the Maximum Total Series B Investment (such actual amount being the Second Closing Payment ), and, in exchange therefor, the Company shall issue and sell to the Purchaser, and the Purchaser shall accept (subject to Section 1.9), a number of shares of Series B-1 Preferred equal to (x) the Second Closing Payment divided by (y) the Series B-1 Purchase Price (as defined in the Series B Certificate of Designations); (b) in the event the Purchaser elects to pay to the Company the Second Closing Payment specified above, the Company shall execute and deliver a warrant substantially in the form of Exhibit G hereto (the Warrant ) in favor of the Purchaser, convertible into such number of shares of Common Stock equal to 25% of the number of shares of Common Stock into which the Series B-1 Preferred purchased pursuant to Section 1.2(a) above are convertible on the date of issuance of the Series B-1 Preferred; (c) provided that the Purchaser makes the Minimum Series B Investment at the Second Closing, the Company will shall issue to the Purchaser, and the Purchaser may choose to accept (at its sole discretion, subject to Section 1.8 and Section 1.9), such number of shares of Series A-1 Preferred that equal, when combined with such number of the Series B-1 Preferred and Warrants, if any, purchased by the Purchaser at the Second Closing up to the Minimum Series B Investment, a 4% Ownership Interest. For purposes of clarity, in the event that the Purchaser elects to invest more than the Minimum Series B Investment at the Second Closing, only such number of Series B-1 Preferred and Warrants as would have been purchased with the Minimum Series B Investment shall be counted in determining the 4% Ownership Interest. Notwithstanding the foregoing, the Company shall issue to the Purchaser a number of shares of Series A-1 Preferred with a Series A Liquidation Value equal to at least $1,250,000, regardless of whether such number of shares results in the Purchaser acquiring greater than a 4% Ownership Interest at the Second Closing (but in no event shall Purchaser acquire greater than a 10% Ownership Interest at the Second Closing, without regard to the Ownership Interest acquired by Purchaser at any prior Closing), provided, however, that, in the event the Purchaser does not elect to pay the Company at least the Minimum Series B Investment at the Second Closing, the Company shall issue to the Purchaser, and the Purchaser shall be entitled to receive, only the greater of (i) a number of shares of Series A-1 Preferred equal to a 2% Ownership Interest, and (ii) a number of shares of Series A-1 Preferred with a Series A Liquidation Value equal to $625,000, but not in any event to exceed a maximum 2% Ownership Interest; (d) the Company shall deliver an Opinion of Counsel applicable to the Second Closing; (e) updated Schedules to this Agreement (which update of the representations and warranties shall reflect that a Material Adverse Effect has not occurred since the prior Closing); (f) the President of the Company shall deliver to the Investors one or more certificates bearing Purchaser a certificate certifying that the appropriate legends herein provided for conditions specified in Section 5.2(a) and free and clear Section 5.2(b) applicable to the Second Closing have been fulfilled; (g) the Company shall reserve a sufficient number of all Liens representing 16,942 shares of Series B Preferred Stock against payment by each Investor of its pro rata share of $16,942,000 (the "Second Purchase Price" and together with the Initial Purchase Price, the "Purchase Price") by wire transfer of immediately available United States funds to a bank account designated by the Company; provided that if the Common Shares issued at the First Closing and the shares of Common Stock issuable upon to account for the conversion of the Series B Preferred Shares (the "Conversion Shares") would cause the Investors or their Affiliates to be deemed for purposes of the BHC Act to own 10% or more all of the outstanding shares Preferred Shares plus the exercise of any class of voting securities all of the Company or to otherwise control the Company, then the number of Series B Preferred Shares to be purchased at outstanding Warrants (taking into account the Second Closing shall be reduced to and including any Deferred Securities under Section 1.8 and Excess Shares under Section 1.9); and (h) the highest number of Series B Preferred Shares at a purchase price per share of $1,000 (Company and the Second Purchase Price Purchaser shall execute and deliver any other documents and agreements necessary or desirable to accomplish the Purchase Price shall be reduced accordingly) such that the Investors will not be deemed for purposes of the BHC Act to own 10% or more of the outstanding shares of any class of voting securities of the Company or to otherwise control the Company. Any determinations under the proviso of the immediately preceding sentence shall take into account the appropriate regulatory treatment of convertible securitiesforegoing.