Common use of Conditions to the Investor’s Obligations at Closing Clause in Contracts

Conditions to the Investor’s Obligations at Closing. The obligation of the Investors to purchase the Purchased Shares at the Closing is subject to the fulfillment or waiver (if permissible by applicable Law) as of the Closing of each of the following conditions: 1. No Law, injunction (including the filing of any petition seeking an injunction against the Company in a matter that is pending as of the date hereof), judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively, "Restraints") shall be in effect enjoining, restraining, preventing or prohibiting consummation of the Transaction. 2. The representations and warranties of the Company set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and as of the Closing Date with the same effect as though made on and as of the Closing Date (except to the extent that such representation and warranty expressly speaks only as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure to be true and correct would not have a Material Adverse Effect; provided, however, that, notwithstanding the foregoing, each of the representations and warranties set forth in Section 4.2, Section 4.4, Section 4.5 and Section 4.6 (except for the issuance of shares of Common Stock required to be issued upon the exercise of options, RSUs, warrants or Preferred Stock of the Company outstanding on the date hereof and the grant of any options or RSUs under any Company Stock Plan existing on the date hereof (or any agreement thereunder) in the ordinary course of business) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date, and the Investors shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 3. The Company shall have performed in all material respects all obligations, agreements and covenants required to be performed by it under this Agreement at or prior to the Closing Date, and the Investors shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 4. Since the date of this Agreement, there shall not have been any occurrence, event, change, effect or development that has had, would have, or would reasonably be expected to have, a Material Adverse Effect. 5. The Series A Certificate of Designations shall be in full force and effect. 6. The Company shall have executed and delivered the Registration Rights Agreement in the form attached as Exhibit A hereto. 7. The Company shall have executed and delivered a secured promissory note in the form attached as Exhibit B hereto (collectively, the "Secured Promissory Notes") to each Investor. 8. The Company shall have executed and delivered to each Investor a confidentiality agreement, in such form as agreed by the Company and the Investors as of the date hereof. 9. The Company shall have executed and delivered the First Amendment to the Security Agreement. 10. The Company shall not have received any notice of delisting from the NASDAQ Stock Market. 11. The Company shall not have settled or agreed to settle, (i) any Proceeding, (ii) any stockholder litigation or dispute against the Company or any of its officers or directors or (iii) any Proceeding that relates to the Transactions; in each case other than settlements involving only the payment of money damages of less than $10,000,000 or that are otherwise fully covered by insurance (in each case other than the Proceeding set forth on Section 6.13 of the Disclosure Letter). 12. The Company shall not have entered into any agreement that contemplates any transactions that if consummated would result in a "Change of Control" as defined in the Series A Certificate of Designations.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investors Investor to purchase the Purchased Preferred Shares and the Warrant at the Closing is subject to the fulfillment or waiver (if permissible by applicable Law) as of on or before the Closing of each of the following conditions: 1. 6.1 No Law, injunction (including the filing of any petition seeking an injunction against the Company in a matter that is pending as of the date hereof)injunction, judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively, "“Restraints"”) shall be in effect enjoining, restraining, preventing or prohibiting consummation of the TransactionTransactions. 2. 6.2 The representations and warranties of the Company set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and as of the Closing Date with the same effect as though made on and as of the Closing Date (except to the extent that such representation and warranty expressly speaks only as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure to be true and correct would not have a Material Adverse Effect; provided, however, that, notwithstanding the foregoing, each of the Fundamental Reps (other than the representations and warranties set forth in Section 4.2, Section 4.4, Section 4.5 and Section 4.6 (except for the issuance of shares of Common Stock required to be issued upon the exercise of options, RSUs, warrants or Preferred Stock of the Company outstanding on the date hereof and the grant of any options or RSUs under any Company Stock Plan existing on the date hereof (or any agreement thereunder) in the ordinary course of business4.21) shall be true and correct in all material respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date, and the Investors Investor shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 3. 6.3 The Company shall have performed in all material respects all obligations, agreements and covenants required to be performed by it under this Agreement at or prior to the Closing Date, and the Investors Investor shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 4. 6.4 Since the date of this Agreement, there shall not have been any occurrence, event, change, effect or development that has had, would have, or would reasonably be expected to have, a Material Adverse Effect. 5. The 6.5 Prior to, or simultaneous with, the Closing, the Company shall have adopted and filed with the Secretary of State of the State of Delaware a Certificate of Designations of the Series A Preferred in the form attached as Exhibit D (the “Series A Certificate of Designations shall be in full force and effectDesignations”). 6. 6.6 The Company shall have executed and delivered the Registration Rights Agreement, the Investor Rights Agreement and the Warrant Agreement, in the form forms attached as Exhibit A exhibits hereto, with such revisions or amendments to the Investor Rights Agreement as may be required pursuant to the rules, requirements or requests of any Exchange. 7. The Company shall have executed and delivered a secured promissory note in 6.7 Simultaneous with the form attached as Exhibit B hereto (collectivelyClosing, the "Secured Promissory Notes") to each Investor. 8. The Company shall have executed and delivered to each Investor a confidentiality agreement, in such form as agreed by the Company and the Investors as of the date hereof. 9. The Company shall have executed and delivered the First Amendment MPSA incorporating the terms set forth in the Term Sheet. 6.8 Simultaneous with the Closing, the Company shall have paid to the Security AgreementInvestor a funding fee equal to $4,000,000, representing 2% of the Purchase Price. 10. The 6.9 Simultaneous with the Closing, the Company shall not have received any notice reimbursed the Investor for their reasonable documented out-of-pocket fees and expenses incurred by the Investors, TowerBrook Capital Partners L.P., Ascension and their respective Affiliates on or before the Closing Date in connection with the evaluation, negotiation and execution of delisting from this Agreement, the NASDAQ Stock MarketInvestor Rights Agreement, the Registration Rights Agreement and the Warrant Agreement and the purchase by the Investor of the Preferred Shares pursuant to this Agreement and other potential transactions with the Company, provided that the Company’s reimbursement obligation under this Section 6.9 shall be capped at $10,000,000. 11. The Company shall not have settled or agreed to settle, 6.10 All waiting periods (iand any extensions thereof) any Proceeding, (ii) any stockholder litigation or dispute against the Company or any of its officers or directors or (iii) any Proceeding that relates applicable to the Transactions; Transactions under the HSR Act shall have been terminated or shall have expired. 6.11 Section 2.1(a) of the Investor Rights Agreement shall have been implemented effective as of the Closing, and in each case other than settlements involving only connection therewith the payment Board shall be comprised, simultaneously with, or immediately following, the Closing, of money damages of less than $10,000,000 or that are otherwise fully covered by insurance (in each case other than the Proceeding individuals set forth on Section 6.13 of Schedule 1 to the Disclosure Letter)Investor Rights Agreement to the extent such individuals are available, eligible and willing to serve. 12. The Company shall not have entered into any agreement that contemplates any transactions that if consummated would result in a "Change of Control" as defined in the Series A Certificate of Designations.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investors to purchase the Purchased Shares at the Closing is subject to the fulfillment or waiver (if permissible by applicable Law) as of the Closing of each of the following conditions: 1. 6.1 No Law, injunction (including the filing of any petition seeking an injunction against the Company in a matter that is pending as of the date hereof), judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively, "Restraints") shall be in effect enjoining, restraining, preventing or prohibiting consummation of the Transaction. 2. 6.2 The representations and warranties of the Company set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and as of the Closing Date with the same effect as though made on and as of the Closing Date (except to the extent that such representation and warranty expressly speaks only as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure to be true and correct would not have a Material Adverse Effect; provided, however, that, notwithstanding the foregoing, each of the representations and warranties set forth in Section 4.2, Section 4.4, Section 4.5 and Section 4.6 (except for the issuance of shares of Common Stock required to be issued upon the exercise of options, RSUs, warrants or Preferred Stock of the Company outstanding on the date hereof and the grant of any options or RSUs under any Company Stock Plan existing on the date hereof (or any agreement thereunder) in the ordinary course of business) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date, and the Investors shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 3. 6.3 The Company shall have performed in all material respects all obligations, agreements and covenants required to be performed by it under this Agreement at or prior to the Closing Date, and the Investors shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 4. 6.4 Since the date of this Agreement, there shall not have been any occurrence, event, change, effect or development that has had, would have, or would reasonably be expected to have, a Material Adverse Effect. 5. 6.5 The Series A Certificate of Designations shall be in full force and effect. 6. 6.6 The Company shall have executed and delivered the Joinder to the Registration Rights Agreement in the form attached as Exhibit A hereto. 7. 6.7 The Company shall have executed and delivered a secured promissory note in the form attached as Exhibit B hereto (collectively, the "Secured Promissory Notes") to each Investor. 8. 6.8 The Company shall have executed and delivered to each Investor a confidentiality agreement, in such form as agreed by the Company and the Investors as of the date hereof. 9. The Company shall have executed and delivered the First Amendment to the Security Agreement. 10. 6.9 The Company shall not have received any notice of delisting from the NASDAQ Stock Market. 11. 6.10 The Company shall not have settled or agreed to settle, (i) any Proceeding, (ii) any stockholder litigation or dispute against the Company or any of its officers or directors or (iii) any Proceeding that relates to the Transactions; in each case other than settlements involving only the payment of money damages of less than $10,000,000 or that are otherwise fully covered by insurance (in each case other than the Proceeding set forth on Section 6.13 of the Disclosure Letter). 12. 6.11 The Company shall not have entered into any agreement that contemplates any transactions that if consummated would result in a "Change of Control" as defined in the Series A Certificate of Designations.

Conditions to the Investor’s Obligations at Closing. The obligation of the Investors to purchase the Purchased Shares at the Closing is subject to the fulfillment or waiver (if permissible by applicable Law) as of the Closing of each of the following conditions: 1. 6.1 No Law, injunction (including the filing of any petition seeking an injunction against the Company in a matter that is pending as of the date hereof), judgment or ruling enacted, promulgated, issued, entered, amended or enforced by any Governmental Authority (collectively, "Restraints") shall be in effect enjoining, restraining, preventing or prohibiting consummation of the Transaction. 2. 6.2 The representations and warranties of the Company set forth in this Agreement, disregarding all qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, shall be true and correct as of the date of this Agreement and as of the Closing Date with the same effect as though made on and as of the Closing Date (except to the extent that such representation and warranty expressly speaks only as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date), except where the failure to be true and correct would not have a Material Adverse Effect; provided, however, that, notwithstanding the foregoing, each of the representations and warranties set forth in Section 4.2, Section 4.4, Section 4.5 and Section 4.6 (except for the issuance of shares of Common Stock required to be issued upon the exercise of options, RSUs, RSUs or warrants or Preferred Stock of the Company outstanding on the date hereof and the grant of any options or RSUs under any Company Stock Plan existing on the date hereof (or any agreement thereunder) in the ordinary course of business) shall be true and correct in all respects as of the date of this Agreement and as of the Closing Date as though made at and as of the Closing Date, and the Investors shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 3. 6.3 The Company shall have performed in all material respects all obligations, agreements and covenants required to be performed by it under this Agreement at or prior to the Closing Date, and the Investors shall have received a certificate signed on behalf of the Company by an executive officer of the Company to such effect. 4. 6.4 Since the date of this Agreement, there shall not have been any occurrence, event, change, effect or development that has had, would have, or would reasonably be expected to have, a Material Adverse Effect. 5. The 6.5 Prior to, or simultaneous with, the Closing, the Company shall have adopted and filed with the Secretary of State of the State of Delaware the Series A Certificate of Designations shall and the Series A Certificate of Designations will be in full force and effect. 6. 6.6 The Company shall have executed and delivered the Registration Rights Agreement in the form attached as Exhibit A hereto. 7. 6.7 The Company shall have executed and delivered a secured promissory note in the form attached as Exhibit B D hereto (collectively, the "Secured Promissory Notes") to each Investor. 8. 6.8 The Company shall have executed and delivered to each Investor a confidentiality agreement, in such form as agreed by the Company and the Investors as of the date hereof. 9. 6.9 The Company shall have executed and delivered the First Amendment to Security Agreement and shall have filed all UCC-1s contemplated by the Security Agreement. 10. 6.10 The Company Stockholder Approval shall have been obtained. 6.11 The Company shall have delivered a payoff letter for the Cxxxxxx Financing Agreement in form and substance reasonably acceptable to the Investors. 6.12 The Company shall not have received any notice of delisting from the NASDAQ Stock Market. 11. 6.13 The Company shall not have settled or agreed to settle, (i) any Proceeding, (ii) any stockholder litigation or dispute against the Company or any of its officers or directors or (iii) any Proceeding that relates to the Transactions; in each case other than settlements involving only the payment of money damages of less than $10,000,000 or that are otherwise fully covered by insurance (in each case other than the Proceeding set forth on Section 6.13 of the Disclosure Letter). 12. 6.14 The Company shall not have entered into any agreement that contemplates any transactions that if consummated would result in a "Change of Control" as defined in the Series A Certificate of Designations.