SECURITIES PURCHASE AGREEMENT

Exhibit 10.45

SECURITIES PURCHASE AGREEMENT

between

ELEVATION PARTNERS, L.P.

and

PALM, INC.

Dated as of December 22, 2008

TABLE OF CONTENTS

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TABLE OF CONTENTS

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TABLE OF CONTENTS

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SECURITIES PURCHASE AGREEMENT

THIS SECURITIES PURCHASE AGREEMENT (this " Agreement ") is made and entered into as of December 22, 2008 between Elevation Partners, L.P., a Delaware limited partnership (" Elevation ") and Palm, Inc., a Delaware corporation (the " Company "). All capitalized terms used in this Agreement shall have the respective meanings ascribed thereto in ARTICLE I , unless otherwise defined herein.

W I T N E S S E T H:

WHEREAS, the parties contemplate a transaction pursuant to which, upon the terms and subject to the conditions set forth in this Agreement, the Company will sell and issue to Elevation 100,000 detachable units (each, a " Unit " and collectively, the " Purchased Units ") for a purchase price of $1,000 per Unit (the " Transaction "), which Units are each comprised of (i) one (1) newly-issued share of Company Series C Preferred Stock (all such shares purchased by Elevation or permitted assignee hereto, collectively, the " Purchased Shares "), the rights, preferences and privileges of which are to be set forth in a Certificate of Designation, the form of which is attached hereto as Exhibit A (the " Certificate of Designation "), and (ii) warrants for the purchase of 70 shares of Company Common Stock (all such warrants purchased by Elevation or permitted assignee hereto, collectively, the " Purchased Warrants "), the form of which is attached hereto as Exhibit B (the " Warrant "), for an aggregate purchase price of $100,000,000 to be paid in two installments as provided herein.

WHEREAS, the Company Board has (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into this Agreement providing for the Transaction in accordance with the General Corporation Law of the State of Delaware (the " DGCL "), upon the terms and subject to the conditions set forth herein, and (ii) approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby in accordance with the DGCL upon the terms and conditions contained herein.

WHEREAS, Elevation has approved the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby in accordance with applicable Law upon the terms and conditions contained herein.

WHEREAS, as a condition to the consummation of the Transaction, the Company and Elevation will enter into the Amended and Restated Stockholders’ Agreement and the Amended and Restated Registration Rights Agreement on the Closing Date.

WHEREAS, concurrently with the execution and delivery of this Agreement, and as a condition and inducement to the willingness of Elevation to enter into this Agreement, the Company and Computershare Trust Company of New York are entering into an amendment (the " Rights Agreement Amendment ") to that certain Preferred Stock Rights Agreement, dated as of September 25, 2000, as amended (the " Company Rights Agreement "), so as to render the rights issued thereunder inapplicable to this Agreement and the transactions contemplated hereby.

WHEREAS, Elevation and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Investment and to prescribe certain conditions with respect to the consummation of the transactions contemplated by this Agreement.

NOW, THEREFORE, in consideration of the foregoing premises and the representations, warranties, covenants and agreements set forth herein, as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and accepted, and intending to be legally bound hereby, Elevation and the Company hereby agree as follows:

ARTICLE I

DEFINITIONS & INTERPRETATIONS

1.1 Certain Definitions . For all purposes of and under this Agreement, the following capitalized terms shall have the following respective meanings:

(a) " Affiliate " shall mean, with respect to any Person, any other Person which directly or indirectly controls, is controlled by or is under common control with such Person. For purposes of the immediately preceding sentence, the term "control" (including, with correlative meanings, the terms "controlling," "controlled by" and "under common control with"), as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise.

(b) " Amended and Restated Registration Rights Agreement " means that certain Amended and Restated Registration Rights Agreement to be dated as of the Closing Date between the Company and Elevation in substantially the form attached hereto as Exhibit C .

(c) " Amended and Restated Stockholders’ Agreement " means that certain Amended and Restated Stockholders’ Agreement to be dated as of the Closing Date between the Company and Elevation in substantially the form attached hereto as Exhibit D .

(d) " Antitrust Law " means the Sherman Act, as amended, the Clayton Act, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other Laws that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or significant impediments or lessening of competition or the creation or strengthening of a dominant position through merger or acquisition, in each case that are applicable to the transactions contemplated by this Agreement.

(e) " Business Day " shall mean any day, other than a Saturday, Sunday and any day which is a legal holiday under the laws of the State of California or New York or is a day on which banking institutions located in the States of California or New York are authorized or required by Law or other governmental action to close.

(f) " Code " shall mean the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.

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(g) " Company Balance Sheet " shall mean the consolidated balance sheet of the Company and its Subsidiaries as of August 29, 2008.

(h) " Company Board " shall mean the Board of Directors of the Company.

(i) " Company Capital Stock " shall mean the Company Common Stock and the Company Preferred Stock.

(j) " Company Common Stock " shall mean the Common Stock, par value $0.001 per share, of the Company, together with the Preferred Stock Purchase Rights appurtenant thereto issued under the Company Rights Agreement.

(k) " Company ESPP " shall mean the Company’s 1999 Amended and Restated Employee Stock Purchase Plan, as amended.

(l) " Company IP " shall mean all Intellectual Property that is owned by or used by the Company or any of its Subsidiaries in connection with the business of the Company and its Subsidiaries.

(m) " Company IP Agreements " shall mean all material contracts (i) under which the Company or any of its Significant Subsidiaries uses any Licensed Company IP incorporated into any Company Product, other than licenses and related services agreements for generally commercially available, off-the-shelf software programs, or (ii) under which the Company or any of its Significant Subsidiaries has licensed to others the right to use any Company IP, other than agreements entered into in the ordinary course of business.

(n) " Company Material Adverse Effect " shall mean any change, effect, event, circumstance or development (each a " Change ", and collectively, " Changes "), individually or in the aggregate, and taken together with all other Changes, that is or would reasonably be expected to be materially adverse to the business, operations, assets (including intangible assets), liabilities, financial condition or results of operations of the Company and its Subsidiaries, taken as a whole; provided, however , that no Change (by itself or when aggregated or taken together with any and all other Changes) resulting from or arising out of any of the following shall be deemed to be or constitute a "Company Material Adverse Effect," and no Change (by itself or when aggregated or taken together with any and all other such Changes) resulting from or arising out of any of the following shall be taken into account when determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur: (A) general economic conditions in the United States or any other country (or changes therein), general conditions in the financial markets in the United States or any other country (or changes therein) and general political conditions in the United States or any other country (or changes therein), in any such case to the extent that such conditions do not have a substantially disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies in the industries or geographies in which the Company operates; (B) general conditions in the industries in which the Company and its Subsidiaries conduct business (or changes therein), in any such case to the extent that such conditions do not have a substantially disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies in the industries or geographies in which the Company operates; (C) any conditions arising out of acts of terrorism

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or war, weather conditions or earthquakes to the extent that such conditions do not have a substantially disproportionate impact on the Company and its Subsidiaries, taken as a whole, relative to other companies similarly situated in the industries or geographies in which the Company operates; (D) the announcement of this Agreement or the pendency of the transactions contemplated hereby; (E) compliance with the terms of, or the taking of any action required or expressly contemplated by, this Agreement other than Section 5.1, or the failure to take any action in the ordinary course of business prohibited by this Agreement; (F) any actions taken outside of the ordinary course of business at the written request of, or with the written consent of, Elevation, or failure to take action, or such other Changes, in each case, to which Elevation has approved, consented to or requested; (G) any changes in Law or in GAAP; (H) changes in the Company’s stock price or the trading volume of the Company’s stock, in and of itself (it being understood that the facts or occurrences giving rise or contributing to such failure that are not otherwise excluded from the definition of a "Company Material Adverse Effect" may be deemed to constitute, or be taken into account in determining whether there has been, is or would be a Company Material Adverse Effect); (I) any failure by the Company to meet any published analyst estimates or expectations of the Company’s revenue, earnings or other financial performance or results of operations for any period, in and of itself (it being understood that the facts or occurrences giving rise or contributing to such failure that are not otherwise excluded from the definition of a "Company Material Adverse Effect" may be deemed to constitute, or be taken into account in determining whether there has been, is or would be a Company Material Adverse Effect); or (J) any legal proceedings made or brought by any of the current or former stockholders of the Company (on their own behalf or on behalf of the Company) related to this Agreement or any of the transactions contemplated hereby; provided , further , that in determining whether a "Company Material Adverse Effect" has occurred or may, would or could occur, the matters set forth on Section 1.1(n) of the Company Disclosure Letter shall be taken into account.

(o) " Company Options " shall mean any options to purchase shares of Company Common Stock outstanding under any of the Company Stock Plans.

(p) " Company Plan " shall mean any "employee benefit plan" (within the meaning of Section 3(3) of ERISA), employment, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement (including early retirement and supplemental retirement), disability, insurance, vacation, employee loan, incentive, deferred compensation, supplemental retirement (including termination indemnities and seniority payments), severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plans, programs, agreement, contracts, policies or binding arrangements (whether or not subject to ERISA) under which any current or former director, officer, independent contractor or employee of the Company or its Subsidiaries has any present or future right to benefits or under which the Company or its Subsidiaries is obligated to contribute for such current or former directors, officers, independent contractors or employees.

(q) " Company Preferred Stock " shall mean the Preferred Stock, par value $0.001 per share, of the Company.

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(r) " Company RSU " shall mean any restricted stock unit or performance shares with respect to Company Common Stock outstanding under any of the Company Stock Plans.

(s) " Company Series B Preferred Stock " shall mean the Series B Preferred Stock, par value $0.001 per share, of the Company, together with the Preferred Stock Purchase Rights appurtenant thereto issued under the Company Rights Agreement (as amended pursuant to Section 5.2).

(t) " Company Series C Preferred Stock " shall mean the Series C Preferred Stock, par value $0.001 per share, of the Company, together with the Preferred Stock Purchase Rights appurtenant thereto issued under the Company Rights Agreement (as amended pursuant to Section 5.2).

(u) " Company Stock-Based Award " shall mean each right of any kind, contingent or accrued, to receive shares of Company Common Stock or benefits measured in whole or in part by the value of a number of shares of Company Common Stock granted under the Company Stock Plans or Company Plans (including performance shares, restricted stock, restricted stock units, phantom units, deferred stock units and dividend equivalents, but not including any 401(k) plan of the Company), other than rights under the Company ESPP and Company Options.

(v) " Company Stock Plans " shall mean (i) the Company’s Amended and Restated 1999 Stock Plan, Amended and Restated 1999 Director Option Plan and Amended and Restated 2001 Stock Option Plan for Non-Employee Directors, (ii) the Handspring, Inc. 1998 Equity Incentive Plan, as amended, the Handspring, Inc. 1999 Executive Equity Incentive Plan, as amended, and the Handspring, Inc. 2000 Equity Incentive Plan, as amended, (iii) the Inducement Option Agreement between the Company and Jonathan Rubinstein and the Inducement Restricted Stock Unit Agreement between the Company and Jonathan Rubinstein, and (iv) any other compensatory option plans assumed by the Company pursuant to a merger, acquisition or other similar transaction pursuant to which there are outstanding awards as of the date hereof.

(w) " Credit Agreement " shall mean the Credit Agreement among the Company, the lenders party thereto, JPMorgan Chase Bank, N.A. and Morgan Stanley Senior Funding, Inc., dated as of October 24, 2007.

(x) " Delaware Law " shall mean the DGCL and any other applicable law (including common law) of the State of Delaware.

(y) " Domain Name " shall mean any or all of the following and all worldwide rights in, arising out of, or associated therewith: domain names, uniform resource locators (" URLs ") and other names and locators associated with the Internet.

(z) " Environmental Law " shall mean any and all applicable Laws and regulations promulgated thereunder, relating to the protection of the environment (including ambient air, surface water, groundwater or land) or natural resources or exposure of any

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individual to Hazardous Substances or otherwise relating to the production, use, emission, storage, treatment, transportation, recycling, disposal, discharge, release or other handling of any Hazardous Substances or the investigation, clean-up or other remediation or analysis thereof and shall include the European Union Restriction of Hazardous Substances and Waste Electrical and Electronic Equipment Directives and any other similar Laws.

(aa) " ERISA " shall mean the Employee Retirement Income Security Act of 1974, as amended, and the rules and regulations promulgated thereunder, or any successor statue, rules and regulations thereto.

(bb) " Exchange Act " shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.

(cc) " GAAP " shall mean generally accepted accounting principles, as applied in the United States.

(dd) " Governmental Authority " shall mean any government, any governmental or regulatory entity or body, department, commission, board, agency or instrumentality, and any court, tribunal or judicial body, in each case whether federal, state, county, provincial, and whether local or foreign.

(ee) " Hazardous Substance " shall mean any substance, material or waste that is characterized or regulated under any Environmental Law as "hazardous," "pollutant," "waste," "contaminant," "toxic" or words of similar meaning or effect, and shall include petroleum and petroleum products, polychlorinated biphenyls and asbestos.

(ff) " HSR Act " shall mean the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules and regulations thereto.

(gg) " Intellectual Property " shall mean any or all of the following and all United States and foreign rights in, arising out of, or associated therewith: (i) all patents and applications therefor and all reissues, divisions, renewals, extensions, provisionals, continuations and continuations-in-part thereof (" Patents "); (ii) all inventions (whether patentable or not), invention disclosures, improvements, trade secrets, proprietary information, know how, confidential information, technology, technical data and customer lists, and all documentation relating to any of the foregoing; (iii) all copyrights, copyrights registrations and applications for registration thereof, throughout the world (" Copyrights "); (iv) all Domain Names; (v) all industrial designs and any registrations and applications therefor throughout the world; (vi) all trade names, logos, common law trademarks and service marks, trademark and service mark registrations and applications therefor throughout the world (" Trademarks "); (vii) all databases and data collections and all rights therein throughout the world; and (viii) any similar or equivalent rights to any of the foregoing (as applicable).

(hh) " Knowledge " of the Company, with respect to any matter in question, shall mean the actual knowledge of any directors or executive officers of the Company.

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(ii) " Law " shall mean any and all applicable federal, state, local, municipal, foreign or other law, statute, constitution, principle of common law, resolution, ordinance, code, edict, decree, rule, regulation, ruling or other requirement issued, enacted, adopted, promulgated, implemented or otherwise put into effect by or under the authority of any Governmental Authority.

(jj) " Leases " shall mean all Contracts under which real property is currently leased, licensed or subleased by the Company or any of its Subsidiaries or otherwise used or occupied by the Company or any of its Subsidiaries.

(kk) " Legal Proceeding " shall mean any action, claim, suit, litigation, proceeding (public or private) or criminal prosecution by or before any Governmental Authority.

(ll) " Liabilities " shall mean any liability, obligation or commitment of any kind (whether accrued, absolute, contingent, matured, unmatured or otherwise and whether or not required to be recorded or reflected on a balance sheet prepared in accordance with GAAP).

(mm) " Licensed Company IP " shall mean all Company IP, other than the Owned Company IP.

(nn) " Lien " shall mean any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

(oo) " Order " shall mean any order, judgment, decision, decree, injunction, ruling, writ or assessment of any Governmental Authority (whether temporary, preliminary or permanent) that is binding on any Person or its property under applicable Law.

(pp) " Owned Company IP " shall mean that portion of the Company IP that is owned by the Company and its Subsidiaries.

(qq) " Permitted Liens " shall mean any of the following: (i) Liens for Taxes, assessments and governmental charges or levies either not yet delinquent or which are being contested in good faith and by appropriate proceedings and for which appropriate reserves have been established to the extent required by GAAP; (ii) mechanics, carriers’, workmen’s, warehouseman’s, repairmen’s, materialmen’s or other Liens or security interests arising in the ordinary course of business that are not yet due or that are being contested in good faith and by appropriate proceedings (and for which adequate retainage or other reserves are held); (iii) Liens imposed by applicable Law (other than Tax Law); (iv) pledges or deposits to secure obligations under workers’ compensation Laws or similar legislation or to secure public or statutory obligations; (v) pledges and deposits to secure the performance of bids, trade contracts, leases, surety and appeal bonds, performance bonds and other obligations of a similar nature, in each case in the ordinary course of business; (vi) defects, imperfections or irregularities in title, easements, covenants and rights of way and other similar restrictions, each of which is of record, and zoning, building and other similar codes or restrictions, in each case that do not adversely

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affect in any material respect the current use and operation of the applicable property owned, leased, used or held for use by the Company or any of its Subsidiaries; (vii) Liens the existence of which are disclosed in the notes to the consolidated financial statements of the Company included in the Company’s Annual Report on Form 10-K for the year ended May 30, 2008 or the Company’s Quarterly Report on Form 10-Q for the fiscal quarter ended August 29, 2008; (viii) any other Liens that do not secure a liquidated amount, that have been incurred or suffered in the ordinary course of business and that would not, individually or in the aggregate, have a material effect on the Company; (ix) statutory, common law or contractual liens of landlords and (x) Liens arising under the Credit Agreement and/or the Guarantee and Collateral Agreement dated as of October 27, 2007 among the Company, certain of its subsidiaries and JPMorgan Chase Bank, N.A.

(rr) " Person " shall mean any individual, corporation (including any non-profit corporation), general partnership, limited partnership, limited liability partnership, joint venture, estate, trust, company (including any limited liability company or joint stock company), firm or other enterprise, association, organization, entity or Governmental Authority.

(ss) " Sarbanes-Oxley Act " shall mean the Sarbanes-Oxley Act of 2002, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules or regulations thereto.

(tt) " SEC " shall mean the United States Securities and Exchange Commission or any successor thereto.

(uu) " Securities Act " shall mean the Securities Act of 1933, as amended, and the rules and regulations promulgated thereunder, or any successor statute, rules or regulations thereto.

(vv) " Significant Subsidiary " means (i) Palm Ireland Investment Incorporated, (ii) Palm Global Operations Limited, (iii) Palm Europe Limited and (iv) Palm Asia Pacific Limited.

(ww) " Subsidiary " of any Person shall mean (i) a corporation more than fifty percent (50%) of the combined voting power of the outstanding voting stock of which is owned, directly or indirectly, by such Person or by one of more other Subsidiaries of such Person or by such Person and one or more other Subsidiaries thereof, (ii) a partnership of which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, is the general partner and has the power to direct the policies, management and affairs of such partnership, (iii) a limited liability company of which such Person or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, is the managing member and has the power to direct the policies, management and affairs of such company or (iv) any other Person (other than a corporation, partnership or limited liability company) in which such Person, or one or more other Subsidiaries of such Person or such Person and one or more other Subsidiaries thereof, directly or indirectly, has at least a majority ownership and power to direct the policies, management and affairs thereof.

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(xx) " Tax " shall mean (i) any and all federal, state, local and foreign taxes, including taxes based upon or measured by gross receipts, income, profits, sales, use and occupation, and value added, ad valorem, transfer, franchise, withholding, payroll, recapture, employment, excise, property and other similar taxes, together with all interest, penalties and additions imposed with respect to such amounts whether disputed or not, (ii) any liability for the payment of any amounts of the type described in clause (i) as a result of being or ceasing to be a member of an affiliated, consolidated, combined or unitary group for any period (including any liability under Treasury Regulation Section 1.1502-6 or any comparable provision of foreign, state or local law) and (iii) any liability for the payment of any amounts of the type described in clause (i) or (ii) as a result of any express or implied obligation to indemnify any other Person or as a result of any obligations under any agreements or arrangements with any other Person with respect to such amounts and including any liability for taxes of a predecessor entity.

(yy) " Tax Returns " shall mean any return, report, information return or other document (including any related or supporting information) filed or required to be filed with any taxing authority with respect to Taxes.

(zz) " Transaction Agreements " means this Agreement, the Amended and Restated Stockholders’ Agreement, the Amended and Restated Registration Rights Agreement, the Warrants and the Certificate of Designation.

1.2 Additional Definitions . The following capitalized terms shall have the respective meanings ascribed thereto in the respective sections of this Agreement set forth opposite each of the capitalized terms below:

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1.3 Certain Interpretations .

(a) Unless otherwise indicated, all references herein to Articles, Sections, Annexes, Exhibits or Schedules, shall be deemed to refer to Articles, Sections, Annexes, Exhibits or Schedules of or to this Agreement, as applicable.

(b) Unless otherwise indicated, the words "include," "includes" and "including," when used herein, shall be deemed in each case to be followed by the words "without limitation."

(c) The table of contents and headings set forth in this Agreement are for convenience of reference purposes only and shall not affect or be deemed to affect in any way the meaning or interpretation of this Agreement or any term or provision hereof.

(d) Unless otherwise indicated, all references herein to the Subsidiaries of a Person shall be deemed to include all direct and indirect Subsidiaries of such Person unless otherwise indicated or the context otherwise requires.

(e) The parties hereto agree that they have been represented by counsel during the negotiation and execution of this Agreement and, therefore, waive the application of any Law, holding or rule of construction providing that ambiguities in an agreement or other document will be construed against the party drafting such agreement or document.

ARTICLE II

THE TRANSACTION

2.1 Purchase and Sale . Subject to and upon the terms and conditions of this Agreement, including the satisfaction or waiver of the applicable conditions set forth in ARTICLE VI, the Company agrees to issue and sell to Elevation, and Elevation agrees to

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purchase from the Company, the Purchased Units for an aggregate purchase price of $100,000,000 (the " Purchase Price "), to be paid in two installments as provided herein, free and clear of any Liens, other than Liens imposed by the Transaction Agreements and/or applicable Law.

2.2 Closing .

(a) Subject to the provisions of this Agreement, including the satisfaction or waiver of the conditions set forth in ARTICLE VI (other than those conditions that by their terms are to be satisfied at the Closing, but subject to the satisfaction or waiver thereof), the closing of the Transaction (the " Closing ") shall take place at the offices of Davis Polk & Wardwell, 1600 El Camino Real, Menlo Park, California, at a time and date to be specified by the parties, which shall be no later than 9:00 a.m. (California time) on January 31, 2009, or at such other time, date and location as the parties hereto agree in writing (the " Closing Date ").

(b) At the Closing:

(i) the Company shall deliver, or cause to be delivered, to Elevation, stock certificate(s) representing such number of shares of Company Series C Preferred Stock and Warrants representing such number of Purchased Warrants which, together, represent the Purchased Units; and

(ii) Elevation shall deliver, or cause to be delivered, to the Company the first installment of the Purchase Price in an amount equal to $1,000 (the " First Installment Payment " and the date on which such payment is made, the " First Installment Payment Date ") by wire transfer of immediately available funds to an account that the Company shall designate at least two Business Days prior to the Closing Date (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of the Company in such amount).

(c) At the later of the Closing and January 15, 2009 (the " Second Installment Payment Date "), Elevation shall deliver, or cause to be delivered, to the Company an amount equal to $99,999,000 (the " Second Installment Payment ," and collectively with the First Installment Payment, the " Installment Payments ") by wire transfer of immediately available funds to an account that the Company shall designate at least two Business Days prior to the Second Installment Payment Date.

2.3 Requested Post-Closing Transfer .

(a) It is the intention of the parties hereto that the Company have the right to require Elevation, under certain circumstances and subject to certain conditions as provided in this Section 2.3, to transfer a portion of the Units purchased by Elevation under this Agreement to designated financial institutions or pursuant to an underwritten public offering for a purchase price per Unit equal to or greater than the purchase price per Unit hereunder (a " Proposed Transfer "). The Company agrees to keep Elevation reasonably informed on a prompt basis of the status of and any developments regarding any potential Proposed Transfer, including any proposed terms of such Proposed Transfer and the identity of any prospective transferee, and will

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provide Elevation with drafts of all agreements proposed to be entered into and Disclosure Documents proposed to be delivered with respect to any Proposed Transfer. All such agreements will be provided to Elevation as early as reasonably practicable under the circumstances (and in any event at least five (5) Business Days prior to execution of such agreements) and shall be subject to Elevation’s review and reasonable comment, which shall be completed as soon as practicable, but in any event prior to the expiration of such five (5) Business Day period. Upon the terms and subject to the conditions set forth in this Section 2.3, Elevation agrees to transfer the number of Units specified in any Transfer Request up to an aggregate of 49,000 Units to one or more financial institutions or pursuant to an underwritten public offering as designated by the Company in any Transfer Request complying with the requirements of this Section 2.3. At any time and from time to time after the Closing, the Company shall have the right to deliver to Elevation a written notice requesting a Proposed Transfer (a " Transfer Request "), which Transfer Request must: (i) provide that the transfer will be consummated no less than three (3) Business Days after delivery of such Transfer Request but no later than March 31, 2009 (the " Transfer Deadline "), (ii) describe all material terms with respect to such Proposed Transfer, which terms must include that the purchase price will be payable solely in cash by the transferee by wire transfer of immediately available funds and that such purchase price will result in Elevation receiving net proceeds of no less than $1,000 per Unit (the " Minimum Proceeds ") at the closing of such Proposed Transfer and (iii) include copies of all agreements proposed to be entered into and Disclosure Documents to be delivered with respect to such transfer. All agreements and arrangements to be entered into by Elevation with respect to such Proposed Transfer must be reasonably satisfactory in form and substance to Elevation and conform to the requirements provided in this Section 2.3. If and to the extent the purchase price payable in respect of any transferred Unit exceeds the Minimum Proceeds (such amount, an " Excess Payment ") then the terms of such Proposed Transfer shall provide that such Excess Payment shall be payable directly to the Company or, to the extent such terms do not so provide, the Transfer Request shall include the wire transfer information as to the account of the Company to which Elevation shall pay such Excess Payment and upon receipt thereof Elevation shall immediately transfer the Excess Payment to the Company to such account.

(b) In furtherance of any Proposed Transfer with respect to which a Transfer Request has been delivered in accordance with the provisions of this Section 2.3, Elevation agrees to take the following actions to the extent necessary to effect the Proposed Transfer pursuant to the Transfer Request: (i) enter into customary agreements providing for the transfer of the relevant securities, including a customary underwriting agreement to the extent applicable, in each case in form and substance reasonably satisfactory to Elevation, and provided that any such agreements (1) shall contain no representations and warranties by Elevation other than as to Elevation’s execution, delivery and performance of such agreements, ownership and title to the securities to be transferred and information provided for inclusion in any offering documentation to the extent such information was provided in writing by Elevation and stated to be specifically for use therein, and (2) shall provide that Elevation shall have no liability with respect to such Proposed Transfer or such agreements except to the extent it breaches such representations and warranties or fails to fulfill its obligation to transfer the securities being sold thereunder in breach of the agreement, (ii) agree to "market-standoff" or lockup obligations in customary form provided that any such obligation expires on or before the Restricted Period Termination Date (as such term is defined in the Amended and Restated Stockholders’ Agreement), and (iii) enter

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into a customary power-of-attorney and custody arrangement in connection with such Proposed Transfer to the extent necessary. The obligation of Elevation to effect any Proposed Transfer is subject to: (A) the representation and warranty of the Company contained in the last sentence of Section 2.3(c) being true and correct in all respects; (B) the representations and warranties of the Company contained in Section 3.1, Section 3.6(e), the fourth sentence of Section 3.8, Section 3.9(a), Section 3.24 and Section 3.25 being true and correct in all material respects as of the date of consummation of any Proposed Transfer, and the Company shall deliver Elevation a certificate certifying to such effect, validly executed for and on behalf of the Company by a duly authorized officer of the Company; (C) Elevation’s reasonable satisfaction that the Company has complied with, and that the Proposed Transfer will comply with, all applicable state and federal securities laws, including with respect to disclosure obligations; and (D) to the extent reasonably requested by Elevation in connection with an underwritten public offering, delivery of customary comfort letters and legal opinions.

(c) In connection with any Proposed Transfer with respect to which a Transfer Request has been delivered the Company shall prepare and furnish to Elevation in accordance with this Section 2.3 such disclosure materials regarding the Company and the Company’s securities, including the Units, as are necessary for the consummation of the Proposed Transfer in accordance with the requirements of the Securities Act and any other applicable state of federal securities law (such disclosure materials, together with any amendment or supplement thereto and all documents incorporated therein by reference, the " Disclosure Documents "). The Company hereby represents and warrants to Elevation that the Disclosure Documents will not, on each of the date of the Transfer Request, the date of delivery to the transferee to which such Transfer Request relate and on the date of the consummation of the Proposed Transfer, contain any untrue statement of material fact or omit to state any material fact necessary in order to make the statements made therein, in the light of the circumstances under which they were made, not misleading.

(d) The Company shall pay all reasonable fees and expenses incurred by Elevation in connection with each Proposed Transfer (including any transfer taxes associated therewith and all reasonable fees and expenses of Elevation’s counsel and other advisors) and shall provide customary indemnification to the purchasers of such securities (and any underwriters thereof) in connection with the Proposed Transfer (and any underwritten offering thereof). In addition, the Company shall (i) indemnify and hold harmless Elevation, its Affiliates and their respective Related Parties (the foregoing, collectively, the " Indemnified Parties ") from and against all claims, losses, damages and liabilities, joint or several, actions or proceedings (whether commenced or threatened in writing) in respect thereof (" Claims ") and expenses suffered or incurred by any of them arising out of or based upon any Proposed Transfer, the Disclosure Documents and any breach of the representations and warranties of the Company referred to in Section 2.3(b) except, in the case of any Indemnified Party, to the extent such Claims arise from the breach by Elevation of its obligations pursuant to this Section 2.3, and (ii) reimburse each Indemnified Party promptly upon demand for any reasonable fees and disbursements of counsel and any other reasonable expenses actually incurred in connection with investigating and defending or settling any such Claim; provided , the indemnity agreement contained in this Section 2.3(d) shall not apply to amounts paid in settlement of any such Claim if such settlement is effected without the consent of the Company (which consent shall not be

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unreasonably withheld or delayed). The Company also agrees that if for any reason the foregoing indemnification is unavailable to the Indemnified Parties or insufficient to hold the Indemnified Parties harmless, then the Company shall contribute to the amount paid or payable to the Indemnified Parties as a result of such Claim in such proportion as is appropriate to reflect the relative fault of the Company and such Indemnified Parties in connection with the actions which resulted in such Claim and any other relevant equitable considerations. The provisions of this Section 2.3(d) are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party, its heirs and representatives and shall be in addition to any obligations which the Company may otherwise have under other agreements or otherwise.

(e) Notwithstanding anything to the contrary in the Amended and Restated Stockholders’ Agreement, Elevation agrees that during the period commencing on the Closing Date and ending on the date of the Transfer Deadline, except pursuant to and in furtherance of any Transfer Request, Elevation shall not (i) transfer more than 50,000 Units to a third party other than a successor or assignee bound by the obligations of Elevation hereunder , or (ii) cause more than 50,000 shares of Company Series C Preferred Stock to be converted into Company Common Stock or Warrants for the purchase of more than 3,500,000 shares of Company Common Stock to be exercised, and any attempt by Elevation to transfer, convert or exercise such securities in violation of this Section 2.3(e) shall be void and have no force or effect.

ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except (i) as set forth in the disclosure schedule delivered by the Company to Elevation on the date of this Agreement (the " Company Disclosure Letter "), or (ii) as set forth in any Company SEC Reports filed by the Company with the SEC prior to the date hereof and after January 1, 2007 (other than in any "risk factor" disclosure or any other forward looking statements set forth therein), the Company hereby represents and warrants to Elevation as follows:

3.1 Authorization . The Company has all requisite corporate power and authority to execute and deliver this Agreement and the other Transaction Agreements and to consummate the transactions contemplated by the Transaction Agreements and to perform its obligations thereunder. The execution and delivery of this Agreement and the other Transaction Agreements by the Company and the consummation by the Company of the transactions contemplated hereby and thereby have been duly authorized by all necessary corporate action on the part of the Company and no additional corporate proceedings on the part of the Company are necessary to authorize this Agreement or the consummation of the transactions contemplated hereby. This Agreement has been, and the other Transaction Agreements will be at the Closing, duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by Elevation, this Agreement constitutes, and the other Transaction Agreements will constitute at the Closing, legal, valid and binding obligations of the Company, enforceable against the Company in accordance with their respective terms, except that such enforceability (a) may be limited by applicable bankruptcy, insolvency, reorganization, moratorium and other similar laws affecting or relating to creditors’ rights generally, and (b) is subject to general principles of equity.

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3.2 Non-Contravention and Required Consents . The execution, delivery or performance by the Company of this Agreement, the consummation by the Company of the transactions contemplated hereby and the compliance by the Company with any of the provisions hereof do not and will not (i) violate or conflict with any provision of the certificate of incorporation or bylaws of the Company, (ii) subject to obtaining such Consents set forth in Section 3.3 of the Company Disclosure Letter, violate, conflict with, or result in the breach of or constitute a default (or an event which with notice or lapse of time or both would become a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, any Material Contract, (iii) assuming compliance with the matters referred to in Section 3.3, violate or conflict with any Law or Order applicable to the Company or any of its Subsidiaries or by which any of their properties or assets are bound, or (iv) result in the creation of any Lien upon any of the properties or assets of the Company or any of its Subsidiaries that in the aggregate are material to the Company and its Subsidiaries, taken as a whole, other than Permitted Liens, except in the case of each of clauses (ii) and (iii) above, for such violations, conflicts, defaults, terminations, accelerations or Liens which would not, individually or in the aggregate, have a Company Material Adverse Effect or have a material adverse effect on the ability of the parties to consummate the Transaction.

3.3 Required Governmental Approvals . No consent, approval, Order or authorization of, or filing or registration with, or notification to (any of the foregoing being a " Consent "), any Governmental Authority is required on the part of the Company in connection with the execution, delivery and performance by the Company of this Agreement and the consummation by the Company of the transactions contemplated hereby, except (i) the filing and recordation of the Certificate of Designation with the Secretary of State of the State of Delaware and such filings with Governmental Authorities to satisfy the applicable laws of states in which the Company and its Subsidiaries are qualified to do business, (ii) such filings and approvals as may be required by any federal or state securities laws, including compliance with any applicable requirements of the Exchange Act, (iii) compliance with any applicable requirements of the HSR Act and any applicable foreign Antitrust Laws, and (iv) such other Consents, the failure of which to obtain would not, individually or in the aggregate, have a Company Material Adverse Effect.

3.4 Organization and Standing . The Company is a corporation duly incorporated, validly existing and in good standing under Delaware Law. Each of the Company and its Subsidiaries has the requisite corporate power and authority to carry on its respective business as it is presently being conducted and to own, lease or operate its respective properties and assets, except in the case of such Subsidiaries other than the Significant Subsidiaries as would not, individually or in the aggregate, have a Company Material Adverse Effect. Each of the Company and its Subsidiaries is duly qualified to do business and the Company is in good standing in each jurisdiction where the character of its properties owned or leased or the nature of its activities make such qualification necessary (to the extent the "good standing" concept is applicable in the case of any jurisdiction outside the United States), except where the failure to be so qualified or in good standing would not, individually or in the aggregate, have a Company Material Adverse Effect. The Company has delivered or made available to Elevation complete and correct copies of (a) the certificates of incorporation and bylaws or other constituent documents, as amended to date and currently in full force and effect, of the Company and its Significant Subsidiaries, and (b) the final minutes of all meetings of the Company Board and

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each committee of the Company Board (other than minutes of such meetings that are related to the Company Board’s evaluation of its strategic alternatives, business combination transactions and other related matters, including the Transaction). Neither the Company nor any of its Subsidiaries is in violation of its certificate of incorporation, bylaws or other applicable constituent documents, except for such violations that would not, individually or in the aggregate, have a Company Material Adverse Effect.

3.5 Subsidiaries . All of the outstanding capital stock of, or other equity or voting interest in, each Significant Subsidiary of the Company (i) have been duly authorized, validly issued and are fully paid and nonassessable and (ii) are owned, directly or indirectly, by the Company, free and clear of all Liens and free of any other restriction (including any restriction on the right to vote, sell or otherwise dispose of such capital stock or other equity or voting interest) that would prevent the operation by the Surviving Corporation of such Significant Subsidiary’s business as presently conducted. No Subsidiary of the Company owns any shares of Company Common Stock.

(b) There are no outstanding (i) securities of the Company or any of its Subsidiaries convertible into or exchangeable for shares of capital stock of, or other equity or voting interest in, any Subsidiary of the Company, (ii) options, warrants, rights or other commitments or agreements to acquire from the Company or any of its Subsidiaries, or that obligate the Company or any of its Subsidiaries to issue, any capital stock of, or other equity or voting inter