Common use of First Closing Clause in Contracts

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company to sell the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to each Purchaser) by the Company, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser set forth in this Agreement shall be true and correct in all material respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company an Investor to sell the purchase Series A Preferred Stock Shares at the First Closing is subject to the fulfillment to the satisfaction of such Investor at or waiver (with prior written notice to each Purchaser) by the Company, on the First Closing Date, of each of the following conditions: (ia) Accuracy Each of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser set forth the Company contained in Article VII shall be true, correct and complete on and as of the First Closing Date as though then made. (b) All covenants, agreements and conditions contained in this Agreement to be performed or complied with by the Company on or prior to the First Closing Date shall have been performed or complied with. (c) On or prior to the First Closing Date, any authorizations, consents, approvals or permits of any Governmental Authority that are required by law in connection with the lawful sale and issuance of the Series A Preferred Shares, and the consummation of the transactions contemplated by this Agreement and each of the Transaction Documents, shall have been duly obtained by the Company and shall be true and correct in all material respects as of the date when made (except for representations and warranties that speak as of a specific date) effective on and as of the First Closing Date; (ii) Performance by , except for any notice filings pursuant to Regulation D under the Purchasers. Each Purchaser shall have performed, satisfied Securities Act and complied in all material respects with all covenants, agreements and conditions pursuant to applicable state securities laws not required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, made on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date. (d) On or prior to the First Closing Date, the Company shall have delivered to special counsel to the Investors copies of all consents and approvals of third parties required under all Contracts to which the Company is a party or by which the Company or any of its assets or properties is affected in connection with the execution, delivery or performance by the Company of this Agreement, the Transaction Documents or any of the other agreements or documents contemplated hereby (including waivers of all preemptive rights and rights of first refusal). (e) [Intentionally omitted.] (f) Effective as of the First Closing, the number of directors constituting the entire Board of Directors of the Company shall have been fixed at no more than seven (7), and shall consist of ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. (g) Such Investor shall have received the satisfactory review, by patent counsel selected by the Investors, of the Intellectual Property Rights underlying the XT250. (h) Each other Investor shall have fulfilled its obligations to deliver its respective portion of the First Purchase Price required to be delivered by it at the First Closing and to otherwise close its investment in the Series A Preferred Stock. (i) The Company shall have delivered to special counsel to the Investors each of the following: (i) Copy of the Certificate of Incorporation certified as of a recent date by the Secretary of State of the State of Delaware; (ii) Certificate of good standing and certificate of status of the Company, as applicable, issued as of a recent date by the Secretary of State of the States of Delaware and Florida; (iii) Certificate of the Chief Executive Officer or the President of the Company, dated the First Closing Date, to the effect that the conditions specified in Sections 3.1(a) through 3.1(f) have been satisfied fully; (iv) Certificate of the Secretary or an Assistant Secretary of the Company, dated the First Closing Date, in form and substance reasonably satisfactory to special counsel to the Investors, as to: (i) no amendments to the Certificate of Incorporation since the date of certification referenced in subparagraph (i) above; (ii) the By-laws (which shall include the provisions set forth in Exhibit E); (iii) the resolutions duly adopted by the Board authorizing and approving, as appropriate, the execution, delivery and performance of this Agreement and each of the Transaction Documents to which the Company is a party and the transactions contemplated hereby and thereby, including the issuance, sale and delivery of the Series A Preferred Shares and the reservation for issuance of the Conversion Common Shares; (iv) resolutions duly adopted by the shareholders of the Company approving the Certificate of Incorporation; and (v) the incumbency and signatures of the officers of the Company authorized to execute and deliver this Agreement and any of the Transaction Documents to which the Company is a party; (v) Indemnification Agreements in the form attached hereto as Exhibit F between the Company and each member of the Board of Directors, including ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇; (vi) Legal opinion of GY&S, outside counsel for the Company, dated the First Closing Date, addressed to the Investors and in the form attached hereto as Exhibit G; (vii) Registration Rights Agreement, duly executed by the Company; (viii) Shareholders Agreement, duly executed by the Company, the Investors and the holders of at least 75% of the outstanding shares of Common Stock of the Company (including the directors, senior managers and founders of the Company) (for purposes of determining such 75%, the Series A Preferred Shares issuable at the First Closing shall be treated as the number of shares of Common Stock into which such shares may be converted); and (ix) such other documents, instruments, approvals or opinions relating to the transactions contemplated by this Agreement as the Investors or the Investors’ special counsel may reasonably request.

First Closing. (ai) Conditions Precedent to the Obligation The closing of the Company to Sell transactions contemplated by clause (i) of Section 2.1 (the Preferred Stock at the “First Closing. The obligation ”) shall take place remotely via the electronic exchange of closing deliveries (i) on the day that is two (2) Business Days after the date on which the last of the Company to sell the Preferred Stock at conditions set forth in Section 7.1, Section 7.2 and Section 7.3 (other than any such conditions that by their terms are not capable of being satisfied until the First Closing is Date, but subject to the satisfaction or waiver (with prior written notice to each Purchaserof those conditions) is satisfied or, when permissible, waived by the CompanyParty for whose benefit such conditions exist; or (ii) on such other date or at such other time or place as the Parties may mutually agree upon in writing (such date, the “First Closing Date”). The First Closing shall be effective for all purposes at 12:01 a.m. central time on the First Closing Date. (ii) At the First Closing, the Company shall deliver, or cause to be delivered, to Buyer the following: (A) evidence of resignations or removals, effective as of the First Closing, of each of the following conditions: (i) Accuracy of the Purchasers' Representations directors, managers and Warranties. The representations and warranties of each Purchaser set forth in this Agreement shall be true and correct in all material respects as of the date when made (except for representations and warranties that speak as of a specific date) and as officers of the First Closing Date; Acquired Entities with respect to whom Buyer has delivered written notice requesting resignation or removal at least five (ii5) Performance by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or Business Day prior to the First Closing Date Closing; (including payment B) a duly executed FIRPTA Certificate and IRS Form W-9 by the Company, in each case, in a form reasonably acceptable to Buyer; provided that Buyer’s sole right if the Company 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 such Purchaser's purchase price)the Code, as applicable; and (iiiC) No Injunction. No statute(1) the Assignment and Assumption Agreement, ruleduly executed by the Company, regulation(2) an equity interest transfer power, executive orderduly executed by the Company with respect to the Company’s First Closing Interests, decreeand (3) the Transition Services Agreement, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending duly executed by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction DocumentsCrestwood. (biii) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at At the First Closing. The obligation of , each Purchaser Seller shall deliver, or cause to acquire and pay for be delivered, to Buyer, with respect to such Seller, the Preferred Stock at certificate referred to in Section 7.3(d). (iv) At the First Closing is subject Closing, Buyer shall deliver, or cause to the satisfaction or waiver (with prior written notice be delivered, to the Company and each other Purchaserthe Sellers the following: (1) the Assignment and Assumption Agreement, duly executed by such PurchaserBuyer, on and (2) the Transition Services Agreement, duly executed by Buyer; (B) the First Closing DatePreliminary Purchase Price, of each of the following conditions:in accordance with Section 2.2; and (iC) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth certificate referred to in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;Section 7.2(c).

First Closing. (a) Conditions Precedent to The first closing at which the Obligation Purchasers shall purchase Shares hereunder shall take place at the offices of the Company at ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ at 12:00 p.m. on December 29, 1998, or such later date not later than December 31, 1998 as the Company may specify upon not less than 24 hours notice by facsimile transmission or telephone (the "First Closing"). Not less than two (2) business days before the First Closing, the Company shall deliver to Sell the Preferred Stock Purchasers its initial Notice of Sale specifying the number of Shares to be sold to each Purchaser at the First Closing. At the First Closing: (a) The obligation Company shall deliver to the Purchasers a certificate, as of the most recent practicable date, as to the legal existence and corporate good standing of the Company to sell issued by the Preferred Stock at Secretary of State of the First Closing is subject Commonwealth of Massachusetts; (b) The Company shall deliver to the satisfaction or waiver (with prior written notice to each Purchaser) by Purchasers the Articles of Organization of the Company, on as amended and in effect as of the First Closing Date, certified by the Secretary of each State of the following conditions: (i) Accuracy Commonwealth of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser set forth in this Agreement shall be true and correct in all material respects Massachusetts, as of the date when made most recent practicable date; (except for representations and warranties that speak c) The Company shall deliver to the Purchasers the By-laws of the Company, certified by its Clerk as of a specific date) and in effect as of the First Closing Date; (iid) Performance by The Company shall deliver to the Purchasers. Each Purchaser shall have performed, satisfied Purchasers a copy of the resolutions of the Board of Directors of the Company authorizing and complied in all material respects with all covenants, agreements and conditions required by approving this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any issuance of the transactions contemplated Shares hereby, certified by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties Secretary of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; and (e) The Company shall deliver to the Purchasers certificates for the Shares being purchased by each Purchaser at the First Closing, registered in the name of each such Purchaser; (iif) Performance Each Purchaser shall pay to the Company the Purchase Price for the number of Shares set forth in the Notice of Sale for the First Closing, by the Company. wire transfer or certified check; and (g) The Company and each Purchaser shall have performed, satisfied execute and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;deliver a Cross-Receipt.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company to sell the Preferred Stock at the First Closing is subject Subject to the satisfaction or waiver (with prior written notice to each Purchaser) by the Company, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser conditions set forth in this Agreement shall be true Section 4.2(a) and correct in all material respects as Section 4.2(b) below, the completion of the date when made (except for representations purchase and warranties that speak as of a specific date) and as sale of the First Closing Date; Shares and the First Closing Warrants (iithe “First Closing”) Performance shall occur no later than the second business day after the execution of this Agreement by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement Investors and the Transaction Documents Company (the “First Closing Date”), in accordance with Rule 15c6-l promulgated under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). At the First Closing, (a) the Company shall cause W▇▇▇▇ Fargo Shareowner Services, the Company’s “Transfer Agent”, to deliver to each Investor the number of First Closing Shares set forth on the Signature Page of such Investor registered in the name of such Investor or, if so indicated on the Investor Questionnaire of such Investor attached hereto as Exhibit A, in the name of a nominee designated by such Investor, (b) the Company shall cause to be performed, satisfied or complied with delivered to such Investor a First Closing Warrant for the number of First Closing Warrant Shares set forth on the Signature Page of such Investor and (c) the aggregate purchase price for the First Closing Shares and the First Closing Warrants being purchased by such Purchaser Investor at such First Closing as set forth on the Signature Page of such Investor will be delivered by or on behalf of such Investor to the Company. Notwithstanding anything contained herein to the contrary, if the First Closing shall not have occurred on or prior to the First Closing Date date that is two (including payment 2) business days after the execution of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or by the Transaction Documents. Investors and the Company (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at unless the First Closing is subject shall not have occurred due to a breach by an Investor of the satisfaction or waiver (with prior written notice terms hereof), then the Investors may terminate this Agreement without further liability of any kind to the Company and each other Purchaser) by such Purchaseror the Investors, on the First Closing Date, of each of the following conditions: provided that (i) Accuracy any such termination of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement shall not relieve any party hereto of any liability in respect of any breach hereof arising prior to the termination of this Agreement (or following such termination with respect to any provisions that survive the termination of this Agreement), and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company this last sentence of Section 4.1(a) and Sections 2.3, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 18, 19, 23 and 24 shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;survive any such termination.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company Buyer hereunder to sell -------------- purchase the Preferred Stock First Convertible Debenture and the First Warrants at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by before the Company, on the First Closing Date, of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion: (i) Accuracy The Company shall have executed the Transaction Documents and delivered the same to the Buyer. (ii) The Common Stock shall be authorized for quotation on the OTCBB, trading in the Common Stock shall not have been suspended for any reason, and all the Conversion Shares issuable upon the conversion of the Purchasers' Representations and Warranties. First Convertible Debenture shall have been approved by the OTCBB. (iii) The representations and warranties of each Purchaser set forth in this Agreement the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties is already qualified as to materiality in Section 3 above, in which case, such representations and warranties shall be true and correct without further qualification) as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser Company shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;. If requested by the Buyer, the Buyer shall have received a certificate, executed by the President of the Company, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Buyer including, without limitation an update as of the Closing Date regarding the representation contained in Section 3(c) above. (iv) The Company shall have executed and delivered to the Buyer the First Convertible Debenture and the First Warrants. (v) The Buyer shall have received an opinion of counsel in a form satisfactory to the Buyer. (vi) The Company shall have provided to the Buyer a certificate of good standing from the Secretary of State from the state in which the Company is incorporated. (vii) The Company shall have delivered to the Escrow Agent the Escrow Shares. (viii) The Company shall have provided to the Buyer an acknowledgement, to the satisfaction of the Buyer, from the Company's certified public accountant as to its ability to provide all consents required in order to file a registration statement in connection with this transaction. (ix) The Company shall have reserved out of its authorized and unissued Common Stock, solely for the purpose of effecting the conversion of the First Convertible Debenture, shares of Common Stock sufficient to effect the conversion of all of such First Convertible Debenture. (x) The Irrevocable Transfer Agent Instructions shall have been delivered to and acknowledged in writing by the Company's transfer agent.

First Closing. (a) Conditions Precedent The consummation of the Product Asset Transfers that are to be consummated initially pursuant to the Obligation Transactions contemplated by Section 2.2 of this Agreement, and the transfers of any related Acquired Assets pursuant to the Transactions contemplated in Section 2.1 of this Agreement, (the “First Closing”) shall take place at the offices of R▇▇▇ ▇▇▇▇▇ LLP, R▇▇▇ ▇▇▇▇▇ Centre, 2▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, at 4:00 p.m., New York time, on the date that is five (5) Business Days following the satisfaction or waiver of all applicable conditions to the consummation of the Company Transactions to Sell be consummated at the Preferred Stock First Closing pursuant to this Agreement and the other Transaction Documents, which, as applicable, include the expiration of any applicable notice period or other agreed upon timeframe related to the Consent Process (other than those conditions which by their terms are intended to be fulfilled at the First Closing) or at such other place, time and date as the Parties may mutually agree (such date, the “First Closing Date”); provided that if, based on market conditions at the relevant time, Federated in good faith determines that the First Closing should not occur on the fifth Business Day referenced above due to potential adverse affects to the Federated Funds (or, as applicable, Other Federated Money Market Funds), Federated may, upon written notice to Parent provided at or before 12 o’clock, Noon, New York time, on the Business Day prior to the First Closing Date, elect to postpone the First Closing Date one time for a reasonable period of time until market conditions a▇▇▇▇ (which period of time shall not exceed thirty (30) calendar days following the date on which the conditions referenced in this sentence have been satisfied or waived) (any such election, a “Federated Closing Election”). The obligation In the case of a Federated Closing Election, the satisfaction of the Company conditions to sell the Preferred Stock consummation of the Transactions to be consummated at the First Closing (other than those conditions which by their terms are intended to be fulfilled at the First Closing) shall be measured as of the date upon which written notice of such Federated Closing Election is delivered to Parent hereunder and not at any subsequent time. Any Party may seek to initiate the First Closing by providing written notice to the other Parties hereto that the conditions referenced in the first sentence of this subsection have been satisfied (or, as applicable, would be waived by such initiating Party). For the avoidance of doubt, subject to the satisfaction or waiver (with prior written notice of the applicable conditions precedent in Article 6 of this Agreement, it is the intention of the Parties to each Purchaser) by consummate the CompanyFirst Closing, on and the Parties agree to use commercially reasonable efforts to cause the conditions to the other Party’s obligation to effect the First Closing Date, of each of the following conditions: (i) Accuracy of the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser set forth in this Agreement shall be true and correct in all material respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser shall have performed, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documentsas soon as reasonably practicable. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company Buyer hereunder to sell purchase the Preferred Stock Debentures at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion: (ia) Accuracy of The Company shall have executed and delivered the Purchasers' Representations Transaction Documents applicable to the First Closing and Warranties. delivered the same to the Buyer. (b) The representations and warranties of each Purchaser set forth in this Agreement the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser Company shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;. (c) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel. (d) The Company shall have executed and delivered to Buyer a closing certificate in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company from the secretary of state (or comparable office) from the jurisdiction in which the Company is incorporated, as of a date within ten (10) days of the First Closing Date; (ii) the Company's Certificate of Incorporation; (iii) the Company 's Bylaws; and (iv) copies ofthe resolutions ofthe board of directors of the Company consistent with Section 6.3, as adopted by the Company's board of directors in a form reasonably acceptable to Buyer. (e) The Company shall have authorized, by appropriate resolution, the issuance of the Shares. (f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (g) The Company shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may required to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be required by Buyer.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company Buyer hereunder to sell purchase the Preferred Stock Debentures at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditionsconditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion: (ia) Accuracy of The Company, each Guarantor and/or the Purchasers' Representations Chief Executive Officer (as applicable) shall have executed and Warranties. delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer. (b) The representations and warranties of each Purchaser set forth in this Agreement the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser Company and each Guarantor shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company and each Guarantor at or prior to the First Closing Date;. (c) The Buyer shall have issued an irrevocable issuance instruction letter and board resolution, authorizing the issuance of the Advisory Fee Shares and irrevocably directing its Transfer Agent to issue and deliver the Advisory Fee Shares to Buyer or its designee. (d) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel. (e) The Buyer shall have received evidence in a form satisfactory to the Buyer that the Company has authorized the Buyer to publish such press releases with respect to this Agreement and the instant transaction, including, but not limited to, a copy of an email delivered to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ by the Company whereby the Company authorizes the Buyer to use its name and, if applicable, stock symbol, in connection with current or ▇▇▇▇▇▇ ▇▇▇▇▇ releases. (f) The Company and each Guarantor shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Company or Guarantor, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company or Guarantor from the secretary of state (or comparable office) from the jurisdiction in which the Company is formed; (ii) the Company’s or Guarantor’s Organizational Documents; (iii) copies of the resolutions of the board of directors of the Company or Guarantor as adopted by the Company’s or Guarantor’s board of directors, in a form acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to the Buyer. (g) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (h) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and each Guarantor, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements. (i) The Company shall have delivered to the Buyer the filed Certificate of Designation of Series I Preferred Stock and the original certificate evidencing the issuance of such shares to the Buyer. (j) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be required by Buyer.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company hereunder to -------------- issue and sell the Preferred Stock First Convertible Debenture and the First Warrants to the Buyer at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by before the Company, on the First Closing Date, of each of the following conditions, provided that these conditions are for the Company's sole benefit and may be waived by the Company at any time in its sole discretion: (i) Accuracy The Buyer shall have executed the Transaction Documents and delivered them to the Company. (ii) The Buyer shall have delivered to the Escrow Agent the First Purchase Price for the First Convertible Debenture and the First Warrants and the Escrow Agent shall have delivered the net proceeds to the Company by wire transfer of immediately available U.S. funds pursuant to the Purchasers' Representations and Warranties. wire instructions provided by the Company. (iii) The representations and warranties of each Purchaser set forth in this Agreement the Buyer shall be true and correct in all material respects as of the date when made and as of the Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) ), and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser Buyer shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company Buyer at or prior to the First Closing Date;. If requested by the Company, the Company shall have received a certificate, executed by an executive officer of the Buyer, dated as of the Closing Date, to the foregoing effect and as to such other matters as may be reasonably requested by the Company. (iv) The Company shall have filed a form UCC -1 with regard to the Pledged Property and Pledged Collateral as detailed in the Security Agreement dated the date hereof and provided proof of such filing to the Buyer. (v) The Company shall have executed a definitive stock purchase agreement with Viasys, Inc.

First Closing. (ai) Conditions Precedent Subject to Section 5.4(c), during the Obligation period from the date of this Agreement until the Company to Sell the Preferred Stock at the First Closing. The obligation earlier of the Company to sell the Preferred Stock at the First Closing is subject Date and any termination of this Agreement pursuant to the satisfaction ARTICLE IX, except (w) as permitted or waiver (with prior written notice to each Purchaser) expressly contemplated by the Company, on the this Agreement or any other First Closing DateTransaction Agreement, of each of (x) as the following conditionsBuyer Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law, or (z) as set forth on Schedule 5.4(a), the Seller Parent shall, and shall cause the Sellers and its other controlled Affiliates to: (iA) Accuracy of conduct the Purchasers' Representations and Warranties. The representations and warranties of each Purchaser set forth in this Agreement shall be true and correct Business in all material respects in the ordinary course of business consistent with past practice; and (B) maintain (1) the tangible Transferred Assets (including the Fab Assets) in their condition as of the date when made of this Agreement, ordinary wear and tear excepted, (except for representations 2) insurance upon the Transferred Assets and warranties First Closing Leased Real Properties in such amounts and of such kinds comparable to that speak as in effect on the date of a specific datethis Agreement, and (3) their respective commercial relationships with customers, suppliers and as other Persons with whom any Seller deals in connection with the Business in the ordinary course. (ii) Subject to Section 5.4(c), during the period from the date of this Agreement until the earlier of the First Closing DateDate and any termination of this Agreement pursuant to ARTICLE IX, except (w) as permitted under, contemplated by or approved under this Agreement or any other First Closing Transaction Agreement, (x) as the Buyer Parent shall otherwise consent in writing (such consent not to be unreasonably withheld, delayed or conditioned), (y) as required by applicable Law or (z) as set forth on Schedule 5.4(a), the Seller Parent shall not, and shall cause the Sellers and its other controlled Affiliates not to, in connection with the Business and the Transferred Assets, take any of the following actions, as applicable: (A) dispose of, assign, transfer, lease, sublease, license (other than licenses to Transferred NAND Patents, Transferred SSD Patents and Dual Use Patents that are automatically granted to a third party pursuant to a written agreement executed prior to the date hereof between Seller Parent or one of its Affiliates and such third party), sell, convey, charge, pledge or subject to any Lien (other than any Permitted Liens and any Liens that would be removed prior to the Closing) any Transferred Asset or vary any rights, easements, security, consents, licenses or covenants over or in respect of them, other than assets sold or disposed of in the ordinary course of business consistent with past practice; (B) create, assume or incur, or agree to create, assume or incur, any obligation or liability (contractual or otherwise, including any Indebtedness) that would constitute an Assumed Liability except in the ordinary course of business; (C) acquire (x) any corporation, partnership, limited liability company, other business organization or division thereof or (y) any assets other than in the ordinary course of business; (D) initiate, settle, or offer or agree to settle, any Action relating to the Business or the Transferred Assets in excess of, individually or in the aggregate, $350,000,000; (E) other than in the ordinary course of business, release or waive the enforcement of any nondisclosure agreement, confidentiality agreement, noncompetition agreement, non-solicitation agreement or other restrictive covenant obligation of any current or former employee or independent contractor with whom any of the Sellers deal in connection with the conduct of the Business in the ordinary course; (F) terminate or serve any notice to terminate; surrender (or accept any surrender of); supplement, restate or amend; or waive any material rights under any Transferred Contract; (G) terminate or serve any notice to terminate; surrender (or accept any surrender of); supplement, restate or amend; fail to renew; fail to pay any amounts payable; or waive any material rights under any Permit or certifications in respect the Transferred Assets and necessary for the conduct of the Business; (H) other than increases to compensation or benefits (i) in the ordinary course of business consistent with past practice (including in connection with promotions), (ii) Performance as may be required by an applicable Law or Labor Agreement or the terms of an Employee Plan, or (iii) pursuant to any agreement or other arrangement entered into with any Business Employee after the date hereof relating to any stay, retention, transaction or other similar bonus or award in respect of any Transaction where the Liability for such bonus or award is a Retained Liability, increase, individually or in the aggregate, the salary, bonus or other compensation or benefits payable to any Business Employee; (I) enter into, adopt, amend or terminate any OpCo Employee Plan; provided that, for the avoidance of doubt, the Seller Parent or its Affiliates shall continue to provide compensation and benefits for the Business Employees under its compensation and benefits programs (other than OpCo Employee Plans); (J) except as may be required by an applicable Law or Labor Agreement or the terms of an Employee Plan as in effect as of the date of this Agreement, (i) other than as permitted by Section 5.4(a)(ii)(H), enter into, adopt, amend or terminate any Employee Plan (or any plan or agreement that would be an Employee Plan if in effect on the date hereof), other than the adoption, entry into, amendment or termination of any Employee Plan that (1) is not targeted only to Business Employees or (2) would not result in an increase in Liability to the Buyer Parent, Buyer or their Affiliates; (ii) transfer the employment of any Business Employee such that the employee would no longer meet the criteria necessary to qualify as a Business Employee other than as a result of such Business Employee (other than a Key Employee or a Senior Business Employee who has received and accepted an offer of employment from Buyer Parent or one of its Affiliates, except with the consent of the general manager of the employer of such NAND Business Employee or the general manager of the employer of such SSD Business Employee, as applicable) applying and being selected in a competitive process not targeted at Business Employees; (iii) terminate the employment of any Business Employee other than for cause or, for those Business Employees other than any Key Employee and Senior Business Employee who has received and accepted an offer of employment from Buyer Parent or one of its Affiliates, in the ordinary course of business consistent with past practices; or (iv) hire any individual for the NAND Business or the SSD Business who would be a Business Employee (other than an Objecting Employee) if such individual was employed by the Purchasers. Each Purchaser shall have performedSellers or their Affiliates as of the date hereof, satisfied or transfer the employment of any individual employed by the Sellers or their Affiliates such that the individual would become a Business Employee, in either case, other than a Core Division NAND Employee or a Core Division SSD Employee as contemplated by Section 6.1(a) or to replace any Business Employee (except for the replacement of any Key Employee) whose employment terminates voluntarily or terminates or transfers in accordance with clauses (ii) or (iii) hereof and complied with compensation and benefits substantially similar to those provided to similarly situated Business Employees; (K) to the extent relating to the Business Employees, (i) enter into any negotiation in respect of, enter into or amend any Labor Agreement or (ii) recognize or certify any Employee Representative Body; (L) to the extent relating to the Business Employees, effect or permit a plant closing, mass layoff or similar event under the WARN Act; (M) except as necessary in the ordinary conduct of the Business consistent with past practice, (1) grant or acquire, agree to grant to or acquire from any Person, or, except as set forth in Section 5.4(a)(ii)(O), dispose of or permit to lapse any rights to any material Intellectual Property Rights of the Business, or disclose or agree to disclose to any Person, other than representatives of the Buyer Parent, any Trade Secret, or (2) compromise, settle or agree to settle, or consent to judgment in, any one or more Actions or institute any Action concerning any material Intellectual Property Rights of the Business; (N) grant, modify or terminate any rights, or enter into any Contract, that would prevent, restrict or conflict with the entry into or the grant of any rights or licenses under, or the performance of, any of the terms of the IP License Agreements; (O) except in the ordinary course of business consistent with past practice, fail to (1) pay any annuity, maintenance or other fee or file any document in connection with granted patents, registered trademarks, and registered copyrights included in the Transferred IP or (2) diligently prosecute and respond to any office action when due (subject to extension of such due date, as permitted by applicable Law) in connection with any pending patent application included in the Transferred IP; provided that the Seller Parent may abandon a patent application after it has been finally rejected or when the next step for that application is to appeal a rejection; (P) incorporate, embed, combine, link to, or distribute any Open Source Materials in a manner that would subject any proprietary or Business Software included in the Transferred Technology to any Copyleft License; (Q) write down or write up (or fail to write down or write up in accordance with GAAP consistent with past practice) the value of any inventories or revalue any of the Transferred Assets, in all material respects cases other than in the ordinary course of business and in accordance with all covenants, agreements GAAP; (R) order raw materials or other supplies for the manufacture of Products in quantities that are not in the ordinary course of business and conditions consistent with the manufacturing needs of the Business; (S) unless required by applicable Law, (I) change any material Tax election, (II) make any material Tax election (to the extent making such election requires the filing of a Tax Return), (III) file any Tax Return other than in the ordinary course of business consistent with past practices, or any amended Tax Return, or (IV) apply for, obtain, or enter into any Tax ruling, closing agreement or other similar Contract, agreement or arrangement with a Governmental Entity if, in the case of the foregoing clauses (I) - (IV), such action would reasonably be expected to increase the liability of the Buyer Parent or any of its Affiliates (including, after the Second Closing, OpCo) for Taxes that are not Retained Tax Liabilities; (T) sell, dispose, encumber or pledge any of the equity interests of OpCo or grant options, warrants, convertible or exchangeable securities, subscriptions, rights, stock appreciation rights, calls or commitments of any kind with respect to such equity interests, or grant any rights to purchase or acquire equity interests of OpCo; or (U) agree or commit to take any action described in this Agreement Section 5.4(a)(ii). (iii) Notwithstanding the foregoing, nothing in this Section 5.4(a) shall prohibit or otherwise restrict in any way the operation of the business of the Seller Parent or any of its Subsidiaries, except solely with respect to the conduct of the Business, the Transferred Assets, the Assumed Liabilities or the Transferred Employees as expressly provided in this Section 5.4(a), and nothing contained herein shall give the Transaction Documents Buyer Parent or any Buyer any right to manage, control, direct or be performedinvolved in the management of the Seller Parent or any Seller at any time or the management of (A) the SSD Business, satisfied the First Closing Transferred Assets, the First Closing Assumed Liabilities or complied with by such Purchaser at or the Transferred SSD Employees prior to the First Closing Date or (including payment of such Purchaser's purchase price); and (iiiB) No Injunction. No statutethe NAND Business, rulethe Second Closing Transferred Assets, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement Second Closing Assumed Liabilities or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or Transferred NAND Employees prior to the First Closing Date;Second Closing.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company Buyer hereunder to sell purchase the Preferred Stock Debentures at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditionsconditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion: (ia) Accuracy of The Company, each Guarantor and/or the Purchasers' Representations Chief Executive Officer (as applicable) shall have executed and Warranties. delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer. (b) The representations and warranties of each Purchaser set forth in this Agreement the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser Company and each Guarantor shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company and each Guarantor at or prior to the First Closing Date;. (c) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel. (d) The Buyer shall have received evidence in a form satisfactory to the Buyer that the Company has authorized the Buyer to publish such press releases with respect to this Agreement and the instant transaction, including, but not limited to, a copy of an email delivered to ▇▇▇▇▇▇▇▇▇▇.▇▇▇ by the Company whereby the Company authorizes the Buyer to use its name and, if applicable, stock symbol, in connection with current or ▇▇▇▇▇▇ ▇▇▇▇▇ releases. (e) The Company and each Guarantor shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Company or Guarantor, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company or Guarantor from the secretary of state (or comparable office) from the jurisdiction in which the Company is formed; (ii) the Company’s or Guarantor’s Organizational Documents; (iii) copies of the resolutions of the board of directors of the Company or Guarantor as adopted by the Company’s or Guarantor’s board of directors, in a form acceptable to Buyer; and (iv) resolution of the Guarantor’s shareholders, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to the Buyer. (f) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (g) The Buyer shall have received copies of UCC search reports, issued by the Secretary of State of the state of incorporation or residency, as applicable, of the Company and each Guarantor, dated such a date as is reasonably acceptable to Buyer, listing all effective financing statements which name the Company and each Guarantor, under their present name and any previous names, as debtors, together with copies of such financing statements. (h) The Company and each Guarantor shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may reasonably require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be reasonably required by Buyer.

First Closing. (a) Conditions Precedent The obligations of Velocitas to purchase the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company to sell the Preferred Stock Initial Note at the First Closing is are subject to the satisfaction or waiver (with prior written notice to each Purchaser) by the Companyfulfillment, on or before the First Closing DateClosing, of each of the following conditions, unless otherwise waived by Velocitas in its sole discretion: (i) Accuracy of the Purchasers' Representations and Warranties. i. The representations and warranties of each Purchaser the Company set forth herein, the Initial Note and the Security Agreement shall be true and complete in this Agreement all respects as of the date of the First Closing as though made on and as of such date (other than those representations and warranties that are made as of a specified date, in which case, such representations and warranties shall be true and correct in all material respects as of such specified date); ii. the date when made (except for representations and warranties that speak as of a specific date) and as Company shall have performed all of the First Closing Date; (ii) Performance by covenants of the Purchasers. Each Purchaser shall have performedCompany set forth herein, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement the Initial Note and the Transaction Documents Security Agreement that are required to be performed, satisfied or complied with by such Purchaser at performed on or prior to the First Closing; iii. the Vice President and Chief Financial Officer of the Company shall have delivered Velocitas at the First Closing Date a certificate certifying that the conditions specified in Sections 5.1(a)(i) and 5.1(a)(i)(ii) have been fulfilled; iv. the Vice President and Chief Financial Officer of the Company shall have delivered Velocitas at the First Closing a certificate certifying that attached thereto are correct and complete copies of: (including payment A) the resolutions duly and validly adopted by the Board of such Directors evidencing its authorization of the execution and delivery of the Transaction Agreements and appointing ▇▇▇▇▇▇▇ ▇▇▇▇ as a director of the Company and ▇▇▇▇▇▇▇ ▇▇▇▇ as Chief Executive Officer of the Company; (B) the articles or certificate of incorporation and by-laws of the Company and each of its Subsidiaries; (C) a good standing certificate for the Company and each of its Subsidiaries from the Secretary of State of the State of Nevada or Delaware, as applicable, dated within seven (7) days of the date of the First Closing; and (E) written resignations and general releases of each of the Resigning Officer and Directors in their capacities as directors and officers (other than ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ who shall be required to resign only in his capacity as a director), in form and substance acceptable to Velocitas; provided, that, the releases and resignations of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as directors of the Company and its subsidiaries shall be effective as of the Second Closing; v. the Company shall have delivered to Velocitas at the First Closing, (A) the Initial Note duly executed by the Company; (B) the Security Agreement duly executed by the Borrower Entities; (C) the Investors’ Rights Agreement duly executed by the Company and the investors specified therein (other than Velocitas and any Purchaser's purchase price); and(D) the Voting Agreement duly executed by the Company and the investors specified therein (other than Velocitas and any Purchaser) and (E) the BackStop Agreement duly executed by the Company and the investors specified therein (other than Velocitas and any Purchaser); vi. all authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Initial Note (iiiand the Common Stock issuable upon conversion thereof) No Injunctionand the Securities pursuant to this Agreement shall be obtained and effective as of the First Closing; vii. No statute, rule, regulation, executive order, decree, ruling or injunction all corporate and other proceedings in connection with the transactions contemplated at the First Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to Velocitas; viii. the Company shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any provided notices of the transactions contemplated by this Agreement or the Transaction DocumentsAgreement to any persons holding (or allegedly holding) any preemptive or similar rights, and either (A) such rights shall have been waived with respect to the transactions contemplated by the Transaction Agreements, or (B) the period for exercise shall have expired with respect to the transactions contemplated by the Transaction Agreements without any holder of such preemptive rights having exercised the same; and ix. Velocitas shall have received an opinion from one or more law firms dated as of the First Closing, in substantially the form attached hereto, with customary opinions regarding corporate authority, approval, valid and binding obligation, due issuance, perfection (with respect to the Liens granted under the Security Agreement) and exemption from Section 5 under the Securities Act. (b) Conditions Precedent to the Obligation The obligations of the Purchasers Company to Purchase issue the Preferred Stock at Initial Note and execute the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock Security Agreement at the First Closing is are subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaserfulfillment, on or before the First Closing DateClosing, of each of the following conditions, unless otherwise waived by the Company in its sole discretion: (i) Accuracy of the Company's Representations and Warranties. i. The representations and warranties of the Company set forth Velocitas contained in this Agreement and in each of the Transaction Documents Section 4 shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing DateClosing; (ii) Performance by the Company. The Company Velocitas shall have performed, satisfied performed and complied in all respects with all covenants, agreements agreements, obligations and conditions required by contained in this Agreement and the Transaction Documents that are required to be performed, satisfied performed or complied with by the Company at Velocitas on or prior to the First Closing DateClosing; iii. Velocitas shall have delivered to the Company at the First Closing, (A) the Security Agreement duly executed by Velocitas; (B) a Disqualification Questionnaire completed and executed by Velocitas and each prospective appointee of Velocitas to the Board of Directors or as an officer of the Company; (C) the Investors’ Rights Agreement duly executed by Velocitas; (D) the Voting Agreement duly executed by Velocitas and (E) the BackStop Agreement duly executed by Velocitas; and iv. all authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Initial Note (and the Common Stock issuable upon conversion thereof) shall be obtained and effective as of the First Closing.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company Buyer hereunder to sell purchase the Preferred Stock Debentures at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditionsconditions (in addition to any other conditions precedent elsewhere in this Agreement), provided that these conditions are for the Buyer’s sole benefit and may be waived by the Buyer at any time in its sole discretion: (ia) Accuracy The Company, the Guarantors, and the President and the Chief Financial Officer of the Purchasers' Representations Company shall have executed and Warranties. delivered the Transaction Documents applicable to the First Closing and delivered the same to the Buyer. (b) The representations and warranties of each Purchaser set forth in this Agreement the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made and as of the First Closing Date as though made at that time (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by Company and the Purchasers. Each Purchaser Guarantors shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company and the Guarantors at or prior to the First Closing Date;. (c) The Buyer shall have received originals of the certificate evidencing the shares to be pledged in connection with the Pledge Agreement. (d) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer and its counsel. (e) The Buyer shall have received copies of survey reports conducted by a Classification Society. (f) The Buyer shall have received a copy of the DOC, SMC and ISSC for the Vessel. (g) The Buyer shall have received evidence in a form satisfactory to the Buyer the Vessel: (i) is registered in the name of Nepheli, is in the sole and absolute ownership of Nepheli, and duly under the flag of an Acceptable Flag State, free of all liens and encumbrances of record other than the Mortgage; (ii) is insured in accordance with the provisions of its Mortgage and all requirements of its Mortgage in respect of such insurance have been fulfilled (including, but not limited to, letters of undertaking from the insurance brokers, including confirmation notices of assignment, notices of cancellation and loss payable clauses acceptable to the Buyer, in its sole and absolute discretion); (iii) is classed in the highest classification and rating for vessels of the same age and type with its Classification Society without any material outstanding recommendations, or if the Vessel is not classed, applicable United States Coast Guard certificates of inspection; (iv) is operationally seaworthy and in every way fit for its intended service; (v) the technical and/or operational management for the Vessel is being provided by a manager acceptable to the Buyer, in its sole and absolute discretion; and (vi) that, save for the liens created by the Mortgage and the General Assignment, there are no liens, charges or encumbrances of any kind whatsoever on the Vessel or on its earnings except as permitted hereby or by any of the Transaction Documents. (h) The Buyer shall have received certified copies of all technical and commercial management agreements and all charter parties (including time charter and bareboat charter), if applicable, for the Vessel. (i) The Company and the Guarantors shall have executed and delivered to Buyer a closing certificate, certified as true, complete and correct by an officer of the Company or Guarantors, in substance and form required by Buyer, which closing certificate shall include and attach as exhibits: (i) a true copy of a certificate of good standing evidencing the formation and good standing of the Company or Guarantors from the secretary of state (or comparable office) from the jurisdiction in which the Company and the Guarantors are formed; (ii) the Company’s or Guarantors’ Organizational Documents; (iii) copies of the resolutions of the board of directors of the Company or Guarantors as adopted by the Company’s or Guarantors’ board of directors, in a form acceptable to Buyer; and (iv) resolution of the Guarantors’ shareholders, approving and authorizing the execution, delivery and performance of the Transaction Documents to which it is party and the transactions contemplated thereby, in a form acceptable to the Buyer. (j) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect. (k) The Company and the Guarantors shall have executed such other agreements, certificates, confirmations or resolutions as the Buyer may require to consummate the transactions contemplated by this Agreement and the Transaction Documents, including a closing statement and joint disbursement instructions as may be required by Buyer.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company hereunder to issue and sell the Initial Preferred Stock Shares and the accompanying Warrants and to issue the Commitment Shares to each Buyer at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Accuracy The Agreement and Plan of Merger (the “Merger Agreement”), dated on or around the date hereof, by and among BLBX, RABLBX Merger Sub Inc. (“Merger Sub”) and the Company, pursuant to which Merger Sub will merge with and into the Company (the “Merger”), shall have been signed by all parties thereto. (ii) Such Buyer shall have executed each of the Purchasers' Representations other Transaction Documents to which it is a party and Warranties. delivered the same to the Company. (iii) Such Buyer and each other Buyer shall have delivered to the Company the Initial Purchase Price (less the amounts withheld pursuant to Section 4(h)) for the Initial Preferred Shares and the accompanying Warrants being purchased by such Buyer at the First Closing by wire transfer of immediately available funds in accordance with the wire instructions provided by the Company. (iv) The representations and warranties of each Purchaser set forth in this Agreement such Buyer shall be true and correct in all material respects as of the date when made and as of the First Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date) , which shall be true and correct as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser such specific date), and such Buyer shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser Buyer at or prior to the First Closing Date (including payment of such Purchaser's purchase price); andDate. (iiiv) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, promulgated or endorsed or threatened or shall be pending by or before any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company Buyer hereunder to sell purchase the Preferred Stock Convertible Debentures at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditions, provided that these conditions are for the Buyer's sole benefit and may be waived by the Buyer at any time in its sole discretion: (a) The Company shall have executed the Transaction Documents applicable to the First Closing and delivered the same to the Buyer. (b) Trading in the Common Stock on the Primary Trading Market shall not have been suspended for any reason, nor shall suspension have been threatened, as of the First Closing Date, either: (i) Accuracy in writing by the SEC or the Principal Trading Market; or (ii) by falling below the minimum listing maintenance requirements of the Purchasers' Representations Principal Trading Market. If required by the Principal Trading Market, all the Conversion Shares issuable upon the conversion of the Convertible Debentures and Warranties. Warrant Shares issuable upon exercise of the Warrants shall be approved for listing or trading on the Primary Trading Market. (c) The representations and warranties of each Purchaser set forth in this Agreement the Company shall be true and correct in all material respects (except to the extent that any of such representations and warranties are already qualified as to materiality in Article VI above, in which case, such representations and warranties shall be true and correct in all respects without further qualification) as of the date when made First Closing Date (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser Company shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;. (d) The Company shall have executed and delivered to the Buyer (or its designees, as applicable) the Convertible Debentures, Warrants and Compensation Stock applicable to the First Closing. (e) The Buyer shall have received an opinion of counsel from counsel to the Company in a form satisfactory to the Buyer. (f) The Company shall have provided to the Buyer a true copy of a certificate of good standing evidencing the formation and good standing of the Company from the secretary of state (or comparable office) from the jurisdiction in which the Company is incorporated, as of a date within ten (10) days of the First Closing Date. (g) The Company shall have delivered to the Buyer a certificate, executed by the Secretary or other officer of the Company and dated as of the First Closing Date, confirming: (i) the matters set forth in Section 10.1(c) hereof; (ii) that resolutions consistent with Section 6.3 above have been adopted by the Company's board of directors in a form reasonably acceptable to Buyer; (iii) the Certificate of Incorporation; and (iv) the Bylaws, each as in effect at the First Closing Date. (h) The Company shall have provided to the Buyer an acknowledgement, to the satisfaction of the Buyer, from the Company's independent certified public accountants as to its ability to provide all consents required in order to file a registration statement in connection with this transaction. (i) The Company shall have created the Share Reserve. (j) The Irrevocable Transfer Agent Instructions, in form and substance satisfactory to the Buyer, shall have been delivered to and acknowledged in writing by the Company's transfer agent. (k) The Company shall have provided to Buyer evidence satisfactory to Buyer that voting agreements or other agreements shall be in place and effective to appoint and elect designees of Buyer to the Company's board of directors in accordance with Section 7.12 above. (l) No event shall have occurred which could reasonably be expected to have a Material Adverse Effect.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation simultaneous consummation of the Company to sell transactions contemplated in this Section 2.5 (the Preferred Stock at the "First Closing is Closing") shall, subject to the satisfaction or waiver (with prior written notice to each Purchaser) of the conditions set forth in Sections 6.1, 6.2 and 6.3, take place at 10:00 a.m. on March 19, 2004, at the offices of ▇▇▇▇ ▇▇▇▇▇ LLP, Princeton ▇▇▇▇▇▇▇▇▇ Village, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, or at such other time and place as shall be mutually agreed upon by the Company, Parties. The date on which the First Closing occurs is referred to in this Agreement as the "First Closing Date". As promptly as reasonably practicable after the First Closing Date and in any event within 10 business days after the First Closing Date, of the Seller shall deliver to the Purchaser any information, records and materials identified in Section 2.3(a) which shall not have been theretofore delivered. All such information, records and materials provided by the Seller shall be filed in files at the Facilities or packaged, organized and listed in a commercially reasonable manner, at the Seller's cost. (b) Seller's Obligations at the First Closing. At the First Closing, the Seller shall undertake, cause to be undertaken, deliver to the Purchaser and/or cause to be delivered to the Purchaser, as applicable, the following, each duly undertaken or executed on behalf of the following conditionsapplicable party by an authorized officer thereof: (i) Accuracy The Seller shall deliver to the Purchaser a ▇▇▇▇ of Sale executed by the Seller with respect to the First Closing Acquired Assets in the form of Exhibit B; ▇▇▇▇▇▇▇ Purchase Option and Agreement ------------------------------------- (ii) ▇▇▇▇▇▇ shall exercise the option to purchase the ▇▇▇▇▇▇▇ Facility in accordance with the ▇▇▇▇▇▇▇ Drive Lease and in connection therewith shall cause to be paid to Par Two Hundred and Fifty Thousand Dollars ($250,000) in immediately available funds as a deposit on the full purchase price for the ▇▇▇▇▇▇▇ Facility and the Par Equipment; (iii) ▇▇▇▇▇▇ and Par shall execute and deliver to the Purchaser the contract of sale for the ▇▇▇▇▇▇▇ Facility in the form attached to the ▇▇▇▇▇▇▇ Drive Lease pursuant to which ▇▇▇▇▇▇ shall purchase from Par, and Par shall sell to ▇▇▇▇▇▇, the ▇▇▇▇▇▇▇ Facility and the Par Equipment (the "▇▇▇▇▇▇▇ Contract of Sale"); (iv) ▇▇▇▇▇▇ shall deliver to the Purchaser the Assignment and Assumption of Contract of Sale executed by ▇▇▇▇▇▇ in the form attached hereto as Exhibit E (the "Assignment of Contract of Sale"); (v) Par shall consent in writing in the form attached hereto as Exhibit F (the "Par Consent") to the assignment of the Purchasers' Representations ▇▇▇▇▇▇▇ Contract of Sale as contemplated by the Assignment of Contract of Sale; Use and Warranties. License; Release of Liens and Grant of Consent by Third Parties ----------------------------------------------------------------------- (vi) The representations Seller shall deliver to the Purchaser the Use and warranties License Agreement executed by the Seller in the form attached hereto as Exhibit H (the "Use and License Agreement"); (vii) ▇▇▇▇▇ Partners III, L.P. shall execute and deliver to the Seller and the Purchaser the Agent's Release of each Purchaser set forth Liens attached hereto as Exhibit I (the "Agent's Release of Liens"); (viii) The Voting Agreement in this Agreement the form attached hereto as Exhibit M (the "Voting Agreement") shall be true executed by the parties thereto and correct delivered to the Seller and the Purchaser; ▇▇▇▇▇▇▇ Facility Real Estate Closing ------------------------------------ (ix) Par shall execute and deliver to the Purchaser the following relating to the ▇▇▇▇▇▇▇ Facility: Deed, Affidavit of Title, Form 1099, a ▇▇▇▇ of Sale relating to the Par Equipment, and other ancillary documentation and customary real estate closing deliveries as may be required by the title company in all material respects as of connection with the date when made transactions relating to the ▇▇▇▇▇▇▇ Facility (except for representations and warranties that speak as of a specific datecollectively, the "Other ▇▇▇▇▇▇▇ Real Estate Documents"); (x) and as ▇▇▇▇▇▇ shall, on the earlier of the First Closing DateDate or March 19, 2004, remove any and all assets, furniture, chemicals and other materials and documents at the ▇▇▇▇▇▇▇ Facility which are not included in the Acquired Assets or the Par Equipment, including, without limitation, the Inventory and the assets set forth on Exhibit D; (iixi) Performance ▇▇▇▇▇▇ and Par shall execute and deliver to the Purchaser the Termination of Lease attached hereto as Exhibit N (the "Termination of Lease"); ▇▇▇▇▇ Facility Lease -------------------- (xii) ▇▇▇▇▇▇ shall provide the Purchaser with the Assignment and Assumption of Tenant's Interest in Lease executed by ▇▇▇▇▇▇ in the Purchasers. Each Purchaser shall have performedform attached hereto as Exhibit O (the "Assignment and Assumption of Tenant's Interest in Lease"); (xiii) ▇▇▇▇▇▇ shall, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement and on the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to earlier of the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statuteor March 19, rule2004, regulationremove any and all assets, executive orderfurniture, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction chemicals and other materials and documents at the ▇▇▇▇▇ Facility which prohibits are not included in the consummation of any of the transactions contemplated by this Agreement Acquired Assets or the Transaction Documents. (b) Conditions Precedent to Par Equipment, including, without limitation, the Obligation of Inventory and the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company assets set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Dateon Exhibit D; (iixiv) Performance ▇▇▇▇▇▇▇ Corporation shall provide the Purchaser with the Consent to Assignment of Lease executed by ▇▇▇▇▇▇▇ Corporation in form attached hereto as Exhibit P (the "Consent to Assignment of Lease"); (xv) ▇▇▇▇▇▇▇ Corporation shall provide the Purchaser with the Landlord Estoppel Letter executed by ▇▇▇▇▇▇▇ Corporation in form attached hereto as Exhibit Q (the "▇▇▇▇▇ Landlord Estoppel Letter"); (xvi) ▇▇▇▇▇▇ shall provide the Purchaser with the Tenant Estoppel Letter executed by ▇▇▇▇▇▇ in the form attached hereto as Exhibit R (the "▇▇▇▇▇ Tenant Estoppel Letter"); (xvii) Such other real estate closing deliveries as may be required by the Companytitle company in connection with the transactions relating to the ▇▇▇▇▇ Facility (the "Other ▇▇▇▇▇ Real Estate Documents"); Assignment and Assumption of Service Contracts ---------------------------------------------- (xviii) The Seller shall assign, and the Purchaser shall assume, the Assumed Contracts pursuant to the form of assignment attached hereto as Exhibit G or in another form of assignment acceptable to the Purchaser. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents Parties acknowledge that there are no Service Contracts relating to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;Computer Systems.

First Closing. (a) Conditions Precedent i. The obligations of KiOR to sell the Shares, and of Purchaser to purchase the Shares are subject to the Obligation of the Company to Sell the Preferred Stock at fulfillment, on or before the First Closing. The obligation of the Company to sell the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to each Purchaser) by the Company, on the First Closing Date, of each of the following conditions: (a) the notifications of Purchaser and KiOR pursuant to the HSR Act, if any, shall have been made and the applicable waiting period and any extensions thereof shall have expired or been terminated; (b) consummation of the transactions contemplated hereby or by the Transaction Documents shall not have been restrained, enjoined or otherwise prohibited or made illegal by, or conditioned upon the receipt of any approvals or consents from Governmental Authorities under, any applicable law; (c) KiOR shall have received, or will receive concurrently with the First Closing, aggregate cash proceeds, including up to $50,000,000 in commitments therefor (which commitments shall not be subject to any conditions in the control of the committing party), of at least $100,000,000 from one or more offerings, private placements or other financing transactions, including (i) Accuracy the amounts paid or payable for the Shares hereunder and (ii) the amounts paid or committed to be paid (subject to the above limitations) pursuant to the Convertible Debt Agreement. ii. The obligations of KiOR to sell the Shares are subject to the fulfillment, on or before the First Closing, of each of the Purchasers' Representations following conditions, unless otherwise waived by KiOR: (a) Purchaser shall have delivered to KiOR an executed original of this Agreement and Warrantiesall other documents and instruments reasonably required to effectuate the transactions contemplated hereby; and (b) Purchaser shall pay to KiOR, by wire transfer of immediately available funds, the amount set forth opposite Purchaser’s name under the heading “Aggregate Purchase Price” on Exhibit A for the Shares being purchased at the First Closing. iii. The obligations of Purchaser to purchase the Shares are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by Purchaser: (a) the Company shall have delivered to Purchaser an executed original of this Agreement; (b) the Company shall have delivered to Purchaser certified copies of resolutions of the Company’s Board of Directors evidencing approval of this Agreement, the transactions contemplated hereunder and other transactions evidenced by the Transaction Documents; (c) the Company shall have delivered to Purchaser certified copies of the Certificate of Incorporation and the Bylaws, each as amended through the First Closing, of the Company; (d) the Company shall have delivered to Purchaser a certificate of good standing for the Company from its state of incorporation and similar certificates from all other jurisdictions in which it does business and where the failure to be qualified would have a Material Adverse Effect; (e) the representations and warranties of each Purchaser the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects as of the date when made (except for that such materiality qualifier shall not be applicable to any representations and warranties that speak as of a specific datealready are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of the First Closing DateClosing; (iif) Performance by the Purchasers. Each Purchaser Company shall have performed, satisfied performed and complied in all material respects with all any covenants, agreements agreements, obligations and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser at or prior to the First Closing Date (including payment of such Purchaser's purchase price); and (iii) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth contained in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions are required by this Agreement and the Transaction Documents to be performed, satisfied performed or complied with by the Company on or before the First Closing; (g) the Chief Executive Officer of KiOR shall deliver to Purchaser at or prior to the First Closing Datea certificate certifying that the conditions specified in Sections 3.1(A)(i)(c), 3.1(A)(iii)(e) and 3.1(A)(iii)(f) have been fulfilled; (h) KiOR shall have received all consents, authorizations or approvals referred to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and Purchaser, and no such consent, authorization or approval shall have been revoked. (i) the Company shall have taken all action necessary to render the provisions of any “fair price,” “moratorium,” “control share acquisition” or any other takeover or anti-takeover statute or similar federal or state law, including Section 203 of the Delaware General Corporation Law, inapplicable to this Agreement and the transactions contemplated by hereby, including, without limitation, the purchase and sale of the Shares, the grant herein of the Option Right and the purchase and sale of Shares in connection with the exercise thereof, and the grant herein of preemptive rights and the purchase and sale of equity of KiOR in connection with the exercise thereof; (j) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchaser in a form to be mutually agreed by the Purchaser and the Company; (k) trading in the common stock of KiOR shall not have been suspended by the SEC or any Permitted Exchange at any time since the date of execution of this Agreement, and the common stock of KiOR shall have been at all times since such date listed for trading on a Permitted Exchange; (l) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchaser; and (m) the Company shall have provided Purchaser with evidence of the filing of Listing of Additional Shares Notification Form with NASDAQ with respect to the shares of Class A Common Stock to be issued at the First Closing.

First Closing. (a) Conditions Precedent to the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company hereunder to issue and sell the Preferred Stock Shares to each Buyer at the First Closing is subject to the satisfaction satisfaction, at or waiver (with prior written notice to each Purchaser) by the Company, on before the First Closing Date, of each of the following conditions, provided that these conditions are for the Company’s sole benefit and may be waived by the Company at any time in its sole discretion by providing each Buyer with prior written notice thereof: (i) Accuracy Such Buyer shall have executed each of the Purchasers' Representations other Transaction Documents to which it is a party and Warranties. delivered the same to the Company. (ii) Such Buyer and each other Buyer shall have delivered to the Company the Purchase Price (less, in the case of the Lead Buyer, the amounts withheld pursuant to Section 4(g)) for the Preferred Shares being purchased by such Buyer at the Closing by wire transfer of immediately available funds in accordance with the wire instructions provided by the Company. (iii) The representations and warranties of each Purchaser set forth in this Agreement such Buyer shall be true and correct in all material respects (except for those representations and warranties that are qualified by materiality or material adverse effect, which shall be true and correct in all respects) as of the date when made and as of the First Closing Date as though originally made at that time (except for representations and warranties that speak as of a specific date) , which shall be true and correct as of the First Closing Date; (ii) Performance by the Purchasers. Each Purchaser such specific date), and such Buyer shall have performed, satisfied and complied in all material respects with all the covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by such Purchaser Buyer at or prior to the First Closing Date (including payment of such Purchaser's purchase price); andDate. (iiiiv) No Injunction. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated, promulgated or endorsed or threatened or shall be pending by or before any court or governmental authority Governmental Entity of competent jurisdiction which that prohibits the consummation of any of the transactions contemplated by this Agreement or the Transaction Documents. (b) Conditions Precedent to the Obligation of the Purchasers to Purchase the Preferred Stock at the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock at the First Closing is subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaser, on the First Closing Date, of each of the following conditions: (i) Accuracy of the Company's Representations and Warranties. The representations and warranties of the Company set forth in this Agreement and in each of the Transaction Documents shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing Date; (ii) Performance by the Company. The Company shall have performed, satisfied and complied in all respects with all covenants, agreements and conditions required by this Agreement and the Transaction Documents to be performed, satisfied or complied with by the Company at or prior to the First Closing Date;

First Closing. (a) Conditions Precedent The obligations of Velocitas to purchase the Obligation of the Company to Sell the Preferred Stock at the First Closing. The obligation of the Company to sell the Preferred Stock Initial Note at the First Closing is are subject to the satisfaction or waiver (with prior written notice to each Purchaser) by the Companyfulfillment, on or before the First Closing DateClosing, of each of the following conditions, unless otherwise waived by Velocitas in its sole discretion: (i) Accuracy of the Purchasers' Representations and Warranties. i. The representations and warranties of each Purchaser the Company set forth herein, the Initial Note and the Security Agreement shall be true and complete in this Agreement all respects as of the date of the First Closing as though made on and as of such date (other than those representations and warranties that are made as of a specified date, in which case, such representations and warranties shall be true and correct in all material respects as of such specified date); ii. the date when made (except for representations and warranties that speak as of a specific date) and as Company shall have performed all of the First Closing Date; (ii) Performance by covenants of the Purchasers. Each Purchaser shall have performedCompany set forth herein, satisfied and complied in all material respects with all covenants, agreements and conditions required by this Agreement the Initial Note and the Transaction Documents Security Agreement that are required to be performed, satisfied or complied with by such Purchaser at performed on or prior to the First Closing; iii. the Vice President and Chief Financial Officer of the Company shall have delivered Velocitas at the First Closing Date a certificate certifying that the conditions specified in Sections 5.1(a)(i) and 5.1(a)(i)(ii) have been fulfilled; iv. the Vice President and Chief Financial Officer of the Company shall have delivered Velocitas at the First Closing a certificate certifying that attached thereto are correct and complete copies of: (including payment A) the resolutions duly and validly adopted by the Board of such Directors evidencing its authorization of the execution and delivery of the Transaction Agreements and appointing V▇▇▇▇▇▇ ▇▇▇▇ as a director of the Company and V▇▇▇▇▇▇ ▇▇▇▇ as Chief Executive Officer of the Company; (B) the articles or certificate of incorporation and by-laws of the Company and each of its Subsidiaries; (C) a good standing certificate for the Company and each of its Subsidiaries from the Secretary of State of the State of Nevada or Delaware, as applicable, dated within seven (7) days of the date of the First Closing; and (E) written resignations and general releases of each of the Resigning Officer and Directors in their capacities as directors and officers (other than T▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ who shall be required to resign only in his capacity as a director), in form and substance acceptable to Velocitas; provided, that, the releases and resignations of T▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and R▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as directors of the Company and its subsidiaries shall be effective as of the Second Closing; v. the Company shall have delivered to Velocitas at the First Closing, (A) the Initial Note duly executed by the Company; (B) the Security Agreement duly executed by the Borrower Entities; (C) the Investors’ Rights Agreement duly executed by the Company and the investors specified therein (other than Velocitas and any Purchaser's purchase price); and(D) the Voting Agreement duly executed by the Company and the investors specified therein (other than Velocitas and any Purchaser) and (E) the BackStop Agreement duly executed by the Company and the investors specified therein (other than Velocitas and any Purchaser); vi. all authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Initial Note (iiiand the Common Stock issuable upon conversion thereof) No Injunctionand the Securities pursuant to this Agreement shall be obtained and effective as of the First Closing; vii. No statute, rule, regulation, executive order, decree, ruling or injunction all corporate and other proceedings in connection with the transactions contemplated at the First Closing and all documents incident thereto shall be reasonably satisfactory in form and substance to Velocitas; viii. the Company shall have been enacted, entered, promulgated, endorsed or threatened or shall be pending by or before any court or governmental authority of competent jurisdiction which prohibits the consummation of any provided notices of the transactions contemplated by this Agreement or the Transaction DocumentsAgreement to any persons holding (or allegedly holding) any preemptive or similar rights, and either (A) such rights shall have been waived with respect to the transactions contemplated by the Transaction Agreements, or (B) the period for exercise shall have expired with respect to the transactions contemplated by the Transaction Agreements without any holder of such preemptive rights having exercised the same; and ix. Velocitas shall have received an opinion from one or more law firms dated as of the First Closing, in substantially the form attached hereto, with customary opinions regarding corporate authority, approval, valid and binding obligation, due issuance, perfection (with respect to the Liens granted under the Security Agreement) and exemption from Section 5 under the Securities Act. (b) Conditions Precedent to the Obligation The obligations of the Purchasers Company to Purchase issue the Preferred Stock at Initial Note and execute the First Closing. The obligation of each Purchaser to acquire and pay for the Preferred Stock Security Agreement at the First Closing is are subject to the satisfaction or waiver (with prior written notice to the Company and each other Purchaser) by such Purchaserfulfillment, on or before the First Closing DateClosing, of each of the following conditions, unless otherwise waived by the Company in its sole discretion: (i) Accuracy of the Company's Representations and Warranties. i. The representations and warranties of the Company set forth Velocitas contained in this Agreement and in each of the Transaction Documents Section 4 shall be true and correct in all respects as of the date when made (except for representations and warranties that speak as of a specific date) and as of the First Closing DateClosing; (ii) Performance by the Company. The Company Velocitas shall have performed, satisfied performed and complied in all respects with all covenants, agreements agreements, obligations and conditions required by contained in this Agreement and the Transaction Documents that are required to be performed, satisfied performed or complied with by the Company at Velocitas on or prior to the First Closing DateClosing; iii. Velocitas shall have delivered to the Company at the First Closing, (A) the Security Agreement duly executed by Velocitas; (B) a Disqualification Questionnaire completed and executed by Velocitas and each prospective appointee of Velocitas to the Board of Directors or as an officer of the Company; (C) the Investors’ Rights Agreement duly executed by Velocitas; (D) the Voting Agreement duly executed by Velocitas and (E) the BackStop Agreement duly executed by Velocitas; and iv. all authorizations, approvals or permits, if any, of any Governmental Entity that are required in connection with the lawful issuance and sale of the Initial Note (and the Common Stock issuable upon conversion thereof) shall be obtained and effective as of the First Closing.