Common use of Conditions to the Obligations of Investor Clause in Contracts

Conditions to the Obligations of Investor. The obligation of Investor to purchase the Note and Warrant at the Closing is subject to the fulfillment, or the waiver by Investor, of the following conditions at or prior to the Closing. (a) The representations and warranties in Section 2 shall be true at the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. (b) Company shall have performed and complied with all agreements and conditions in this Agreement required to be performed or complied with by Company prior to or at the respective Closing. (c) Company shall have fully satisfied (including with respect to rights of timely notification) or obtained enforceable waivers in respect of any rights of first refusal, preemptive or similar rights, including any such rights granted pursuant to the Stockholders Agreement, directly or indirectly affecting any of the Securities or other securities of the Company such that no Person, other than Investor, has any right or will purchase any of the Securities. (d) The Stockholders Agreement and Registration Rights Agreement shall have been amended as contemplated in Sections 5.11 and 5.12 and such amendments shall be satisfactory in form and substance to Investor. (e) The Certificate of Amendment shall have been duly adopted by Company by all necessary corporate action of its Board and stockholders, and shall have been duly filed with and accepted by the Secretary of State of the State of Delaware. (f) Company shall have delivered to Investor a certificate, executed by the President of Company, dated the date of the applicable Closing, certifying to the fulfillment of the conditions specified in subsections (a) and (b) of this Section 6.1. (g) All corporate and other proceedings in connection with the transactions contemplated in this Agreement and the Transaction Agreements and all documents and instruments incident to such transactions shall be satisfactory in substance and form to Investor and its counsel, and Investor and its counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.

Conditions to the Obligations of Investor. The obligation of Investor to purchase consummate the Note and Warrant transactions contemplated by this Agreement at the Closing is shall be subject to the fulfillment, or satisfaction by the waiver by Investor, of the following conditions Company at or prior to the ClosingClosing of each of the following conditions (to the extent non-compliance is not waived in writing by Investor); (a) This sale of the Shares and the MPM Mining Agreement shall have been approved by the shareholders of the Company in accordance with applicable Laws and the Company’s Governing Documents. (ab) No restraining order or injunction shall prevent the transactions contemplated by this Agreement and no action, suit or proceeding by a Governmental Authority shall be pending or threatened before any court or administrative body in which it will be or is sought to restrain or prohibit or obtain damages or other relief in connection with this Agreement or the consummation of the transactions contemplated hereby. (c) The representations and warranties made by the Company in Section 2 Article III shall be true at the Closing with the same effect as though such representations and warranties had been made on and correct in all respects as of the date of this Agreement, and will be true and correct in all respects as of the ClosingClosing Date as if then made (except for representations and warranties given as of a specific date, which representations shall be true and correct in all respects as of that date). (bd) The Company shall have performed and complied with all agreements of its covenants and conditions in obligations under this Agreement required to be performed or complied with by Company prior to it at or at before the respective Closing. (ce) No Company Material Adverse Effect shall have occurred since the Effective Date and continue to exist. (f) The Company shall have fully satisfied (including with respect obtained a consent, in form and substance satisfactory to rights of timely notification) or obtained enforceable waivers in respect of any rights of first refusalInvestor, preemptive or similar rights, including any such rights granted pursuant to the Stockholders consummation of the transactions contemplated by this Agreement from (i) all Governmental Authorities whose consent or approval is required for the consummation by the Company of the transactions contemplated by this Agreement, directly or indirectly affecting any of and (ii) each counterparty to the Securities or other securities of the Company such that no Person, other than Investor, has any right or will purchase any of the SecuritiesMaterial Contracts listed on Schedule 6.1(f). (dg) The Stockholders Agreement Company’s aggregate indebtedness at Closing shall not exceed the amount set forth on Schedule 6.1(g). (h) The Company Agreements shall have been executed and Registration Rights delivered by Messrs. Hxx, Txxxxx and Little. (i) The MPM Mining Agreement shall have been amended executed and delivered by the parties thereto, and the transactions contemplated thereby shall have closed. (j) Investor shall have received all Closing deliverables required by Section 2.5. (k) Investor shall have received net proceeds of not less $2,500,000 from the sale of its membership interests. (l) All actions to be taken by the MPM Companies in connection with completion of the transactions contemplated by the Transaction Documents and all certificates, instruments, and other documents expressly required to effect the transactions contemplated by the Transaction Documents or reasonably required to satisfy Investor as contemplated in Sections 5.11 and 5.12 and such amendments shall be to the satisfaction of the conditions required hereunder are reasonably satisfactory in form and substance to Investor. (e) The Certificate of Amendment . Investor may waive any condition specified in this Section 6.1 by executing a writing so stating at or before the Closing but Investor shall have been duly adopted by Company by all necessary corporate action of its Board and stockholders, and shall have been duly filed with and accepted by the Secretary of State of the State of Delawareno obligation to grant any such waiver. (f) Company shall have delivered to Investor a certificate, executed by the President of Company, dated the date of the applicable Closing, certifying to the fulfillment of the conditions specified in subsections (a) and (b) of this Section 6.1. (g) All corporate and other proceedings in connection with the transactions contemplated in this Agreement and the Transaction Agreements and all documents and instruments incident to such transactions shall be satisfactory in substance and form to Investor and its counsel, and Investor and its counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.

Conditions to the Obligations of Investor. The obligation obligations of Investor to purchase effect the Note and Warrant at the Backstop Closing is shall be subject to the fulfillment, or the waiver by Investor, following conditions: (a) Each of the following conditions Registration Statement and Prospectus Supplement shall conform in all material respects on the Backstop Closing Date, and any amendment to the Registration Statement filed after the date hereof shall conform in all material respects when filed, to the requirements of the Securities Act and the terms of this Agreement. (b) All representations and warranties of the Company contained in this Agreement shall be true and correct in all material respects as of the date hereof and as of the Backstop Closing Date (except to the extent that any such representation and warranty expressly speaks as of an earlier date, in which case such representation and warranty shall be true and correct as of such earlier date); provided however that any representation or warranty qualified by materiality, Material Adverse Effect or words of similar import shall be true and correct in all respects as of such dates; (c) the Company shall have performed in all material respects all of its obligations required to be performed by it hereunder at or prior to the Backstop Closing. (a) The representations and warranties in Section 2 shall be true at the Closing with the same effect as though such representations and warranties had been made on and as of the date of the Closing. (b) Company shall have performed and complied with all agreements and conditions in this Agreement required to be performed or complied with by Company prior to or at the respective Closing. (c) Company shall have fully satisfied (including with respect to rights of timely notification) or obtained enforceable waivers in respect of any rights of first refusal, preemptive or similar rights, including any such rights granted pursuant to the Stockholders Agreement, directly or indirectly affecting any of the Securities or other securities of the Company such that no Person, other than Investor, has any right or will purchase any of the Securities.; (d) The Stockholders Agreement and Registration Rights Agreement the conditions set forth in Section 2.3(b) shall have been amended as contemplated in Sections 5.11 and 5.12 and such amendments shall be satisfactory in form and substance to Investor.satisfied; (e) The Certificate of Amendment Investor shall have been duly adopted received a certificate, signed by Company by all necessary corporate action an officer of its Board the Company, certifying as to the matters set forth in Section 5.3(a) and stockholders, and Section 5.3(b); (f) Investor shall have been duly filed with received a certificate of the secretary or assistant secretary of the Company, dated as of the Backstop Closing, certifying (A) that attached thereto is a true and accepted complete copy of the current certificate of incorporation and the bylaws of the Company certified (to the extent applicable) as of a recent date by the Secretary of State of the State state of Delaware. its organization, (B) that attached thereto is a true and complete copy of any resolutions duly adopted by the board of directors and/or the Stockholders authorizing the execution, delivery and performance of the Agreement and each Ancillary Agreement to which the Company is a party and that such resolutions have not been modified, rescinded or amended and are in full force and effect and (C) as to the incumbency and specimen signature of each officer executing any Agreement and/or Ancillary Agreement or any other document delivered in connection herewith on behalf of the Company (together with a certificate of another officer as to the incumbency and specimen signature of the secretary or assistant secretary executing the certificate in this clause (f) Company shall have delivered to Investor a certificate, executed by the President of Company, dated the date of the applicable Closing, certifying to the fulfillment of the conditions specified in subsections (a) and (b) of this Section 6.1.)); (g) All corporate Investor shall have received a certificate as to the good standing or equivalent of the Company and other proceedings each Subsidiary; (h) the shares of Common Stock to be issued upon conversion of the Preferred Stock shall have been approved for listing on NASDAQ, subject to official notice of issuance; and (i) the Initial Investor Designees as Investor is entitled to designate pursuant to Section 7.2 shall have been appointed to the Board effective immediately following the Backstop Closing, and the Company shall have entered into customary indemnification agreements with such Initial Investor Designees at or prior to their appointment; and (j) legal counsel to the Company shall have issued a legal opinion to the Investor substantially in connection with the transactions contemplated form set forth in Exhibit II that opines on the organization and authorization of the Company, the due execution and delivery of this Agreement and the Transaction Ancillary Agreements by the Company and all documents the enforceability of this Agreement and instruments incident to such transactions shall be satisfactory in substance and form to Investor and its counsel, and Investor and its counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably requestthe Ancillary Agreements by the Investor.

Conditions to the Obligations of Investor. The obligation of the Investor to purchase the Note and Warrant at consummate the Closing is subject to the fulfillment, satisfaction (or the waiver by the Investor in writing, which may be given or withheld at the Investor, ’s sole discretion) of the following conditions at or prior to the Closing.: (a) The the representations and warranties set forth in Section 2 Articles II and III shall be true at and correct as of the Closing with Date (disregarding all qualifications or limitations as to “materiality” or “Material Adverse Effect” (other than the same effect use of “Material Adverse Effect” in Section 2.7(a)) and words of similar import set forth therein), as though such representations and warranties had been made on and as of the Closing Date (except that representations and warranties that speak to a specified date or period need be true and correct only with respect to such specified date or period), except where the failure of such representations and warranties to be true and correct has not had, and would not reasonably be expected to have a Material Adverse Effect; provided, that the Closing.Fundamental Representations set forth in Article II and Article III shall be true and correct in all respects (except where the failure of such Fundamental Representations to be true and correct is de minimis in nature); provided, further, that the representations and warranties set forth in Section 2.7(a) shall be true and correct in all respects; (b) the Company and the Parent shall have each performed in all material respects all of the covenants and complied with all agreements and conditions in this Agreement required to be performed by each of them under this Agreement at or complied with by Company prior to or at the respective Closing.; (c) Company the Parent shall have fully satisfied (including with respect delivered or caused to rights of timely notification) or obtained enforceable waivers in respect of any rights of first refusal, preemptive or similar rights, including any such rights granted pursuant be delivered to the Stockholders Agreement, directly or indirectly affecting any of the Securities or other securities of Investor those items to be delivered by it and the Company such that no Person, other than Investor, has any right or will purchase any of the Securities.set forth in Section 1.4; (d) The Stockholders Agreement and Registration Rights Agreement shall have been amended as contemplated in Sections 5.11 and 5.12 and such amendments shall be satisfactory in form and substance to Investor. (e) The Certificate of Amendment shall have been duly adopted by Company by all necessary corporate action of its Board and stockholders, and shall have been duly filed with and accepted by the Secretary of State of the State of Delaware. (f) Company shall have delivered to the Investor a certificate, properly completed and executed by IRS Form W-9; and (e) the President of Company, dated Parent shall have delivered to the date Investor a certificate of the applicable ClosingCompany and the Parent signed by an authorized officer of each of the Parent and the Company and dated as of the Closing Date, certifying to the fulfillment of that the conditions specified in subsections (aSection 6.2(a) and (bSection 6.2(b) of this Section 6.1have been satisfied. (g) All corporate and other proceedings in connection with the transactions contemplated in this Agreement and the Transaction Agreements and all documents and instruments incident to such transactions shall be satisfactory in substance and form to Investor and its counsel, and Investor and its counsel shall have received all such counterpart originals or certified or other copies of such documents as they may reasonably request.

Conditions to the Obligations of Investor. Section 7.01 Conditions to the Obligations of Investor at the Initial Closing. The obligation of Investor hereunder to purchase consummate the Note and Warrant transactions contemplated by this Agreement to occur at the Initial Closing is subject to the fulfillmentsatisfaction or written waiver (where permissible under applicable Law), or the waiver by Investor, of the following conditions at or prior to the Initial Closing., of each of the following conditions: (a) The representations and warranties of the Company set forth in Section 2 Article IV shall be true at and correct in all respects as of the date hereof and as of the Initial Closing with the same effect Date as though such representations and warranties had been made on and as of such date (except to the extent that such representations and warranties speak only as of the date hereof or as of the Closinganother date, in which case, only as of such date). (b) The Company shall have performed or complied in all material respects with each of its covenants and complied with all agreements and conditions in required by this Agreement required to be performed or complied with by Company it on or prior to or at the respective Initial Closing. (c) Company Investor shall have fully satisfied (including with respect to rights of timely notification) or obtained enforceable waivers in respect of any rights of first refusal, preemptive or similar rights, including any such rights granted pursuant to the Stockholders Agreement, directly or indirectly affecting any of the Securities or other securities received a certificate signed on behalf of the Company such by an executive officer certifying to the effect that no Person, other than Investor, has any right or will purchase any of the Securitiesconditions set forth in Sections 7.01(a) and (b) have been satisfied. (d) The Stockholders Agreement Any and Registration Rights Agreement all consents, approvals, non-disapprovals, clearances, orders and other authorizations of any Governmental Entity necessary for the consummation of the transactions contemplated by the Transaction Documents in respect of the Initial Purchase shall have been amended as contemplated in Sections 5.11 and 5.12 and such amendments shall be satisfactory in form and substance to Investorobtained. (e) No Governmental Entity of competent jurisdiction shall have enacted, issued, promulgated, enforced or entered any decision, injunction, decree, ruling, Law or Order (whether temporary, preliminary or permanent) that is in effect and enjoins or otherwise prohibits or makes illegal the consummation of the transactions contemplated by the Transaction Documents in respect of the Initial Purchase. (f) The Conversion Shares and the Warrant Shares shall have been approved for listing on Nasdaq, subject to official notice of issuance. (g) The Certificate of Amendment Designation shall have been duly adopted by Company by all necessary corporate action of its Board and stockholders, and shall have been duly filed with and accepted by the Secretary of State of the State of DelawareDelaware in accordance with the DGCL. (fh) Company The NWPA Amendment and Waiver shall have delivered to Investor a certificatebeen entered into, executed by the President of Company, dated effective on or before the date of the applicable Closinghereof, certifying in a form reasonably satisfactory to the fulfillment of the conditions specified in subsections (a) and (b) of this Section 6.1Investor. (gi) All corporate and other proceedings in connection with The condition set forth on Schedule 7.01(i) shall have been satisfied. (j) The Investor Rights Agreement shall have been entered into, effective as of the transactions contemplated in this Initial Closing Date. (k) The Lock-Up Agreement and the Transaction Voting and Lock-Up Agreements and all documents and instruments incident to such transactions shall be satisfactory in substance and form to have been entered into, effective as of the date hereof. (l) There shall not have occurred a Material Adverse Effect. (m) Investor and its counsel, and Investor and its counsel shall have received all such counterpart originals any opinions of the Company’s counsel that are requested by Investor, dated as of the Initial Closing Date, each in a form reasonably satisfactory to Investor. (n) Effective as of the Initial Closing, each of the Investor Designated Directors to be appointed as of the Initial Closing shall have been appointed to the applicable class of directors and applicable committee of the Company Board, as identified in Schedule 5.14. (o) Trading in the Common Stock shall not have been suspended by the SEC or certified or other copies of such documents as they may reasonably requestNasdaq.