Common use of Conditions to the Second Closing Clause in Contracts

Conditions to the Second Closing. The obligation of Purchaser hereunder to purchase the Second Closing Note on the date of the Second Closing is subject to the satisfaction of each of the following conditions (including conditions to be performed at the Second Closing), provided that these conditions are for Purchaser’s sole benefit and may be waived by Purchaser at any time in Purchaser’s sole discretion: (i) The First Closing shall have been consummated. (ii) The Company shall have delivered a duly executed Second Closing Note being so purchased by Purchaser at the Second Closing (each in such denominations as Purchaser shall request). (iii) The Common Stock shall be listed on the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely for the foreseeable future. (iv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Second Closing as though made at that time and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s counsel shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Second Closing to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser. (v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (vi) Purchaser’s counsel shall have received an opinion of the Company’s outside legal counsel, dated as of the Second Closing, in the form attached hereto as Exhibit E. (vii) The Registration Statement shall have been declared effective by the SEC, and shall be available for use by Purchaser for the resale of all of Purchaser’s Registrable Securities (as defined in the Registration Rights Agreement), within 120 days of the date of the First Closing. (viii) No proceeding commenced by or against the Company under any provision of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief shall have occurred. (ix) Since the First Closing, no event has occurred which has had a Material Adverse Effect (as defined in Section 3.1).

Conditions to the Second Closing. 6.1. Conditions to the Obligations of the Company and the Purchasers. The obligation respective obligations of Purchaser hereunder each of the Company and the Purchasers to purchase effect the Second Closing Note will be subject to the satisfaction (or waiver, if permissible under applicable law) on or prior to the Second Closing Date of the following conditions: 6.1.1. no temporary or permanent judgment shall have been enacted, promulgated, issued, entered, amended or enforced by any governmental authority nor shall any applicable law be in effect enjoining or otherwise prohibiting consummation of the transactions contemplated hereby; 6.1.2. no stop order suspending the qualification or exemption from qualification of the Preferred Shares or Conversion Shares in any jurisdiction shall have been issued and no lawsuit, action or other legal proceeding for that purpose shall have been commenced or shall be pending; 6.1.3. the Company shall have filed with the SEC the 2023 10-K and its quarterly reports on Form 10-Q for the fiscal quarters ended March 31, 2024 and June 30, 2024, and all other statements, reports, information or forms required to be filed by it with the SEC since the date hereof; 6.1.4. the License Agreement shall not have been terminated or materially adversely amended; and 6.1.5. there shall not have been any further material amendments to the Note Purchase Agreement, unless reasonably satisfactory to Purchasers of at least a majority of the Preferred Shares. 6.2. Conditions to the Obligations of the Company. The obligations of the Company to effect the Second Closing shall be further subject to the satisfaction (or waiver, if permissible under applicable law) on or prior to the Second Closing Date of the following condition: 6.2.1. the representations and warranties of each Purchaser set forth in this Agreement shall be true and correct in all material respects as of the Second Closing is Date with the same effect as though made as of the Second Closing Date (except to the extent expressly made as of an earlier date, in which case as of such earlier date); and 6.2.2. each Purchaser shall have complied with or performed in all material respects its obligations required to be complied with or performed by it pursuant to this Agreement at or prior to the applicable Closing. DB1/ 149227402.4 6.3. Conditions to the Obligations of the Purchasers. The obligations of the Purchasers to effect the applicable Closing shall be further subject to the satisfaction of each (or waiver, if permissible under applicable law) on or prior to the applicable Closing Date of the following conditions (including conditions to be performed at the Second Closing), provided that these conditions are for Purchaser’s sole benefit and may be waived by Purchaser at any time in Purchaser’s sole discretionconditions: (i) The First Closing shall have been consummated. (ii) The Company shall have delivered a duly executed Second Closing Note being so purchased by Purchaser at the Second Closing (each in such denominations as Purchaser shall request). (iii) The Common Stock shall be listed on the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely for the foreseeable future. (iv) 1.1.1. The representations and warranties of the Company contained in Article III of this Agreement shall be true and correct in all material respects as of the date when made of this Agreement, and as of the Second Closing Date as though made at that time on and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s counsel shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Second Closing to the foregoing effect Date, except for those of such representations and warranties that are made as to of a specific date, which shall be true and correct in all material respects as of such other matters as may be reasonably requested by Purchaser. (v) No statutespecific date; provided, rulehowever, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (vi) Purchaser’s counsel shall have received an opinion representations or warranties of the Company’s outside legal counsel, dated Company contained in Article III of this Agreement that are qualified as of the Second Closing, in the form attached hereto as Exhibit E. (vii) The Registration Statement shall have been declared effective by the SEC, and shall be available for use by Purchaser for the resale of all of Purchaser’s Registrable Securities (as defined in the Registration Rights Agreement), within 120 days of the date of the First Closing. (viii) No proceeding commenced by to materiality or against the Company under any provision of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief shall have occurred. (ix) Since the First Closing, no event has occurred which has had a Material Adverse Effect (as defined shall be true and correct in Section 3.1).all respects;

Conditions to the Second Closing. (a) Conditions to the Investors' Obligations. The obligation of Purchaser hereunder each Investor to purchase the Second Closing Note on the date of Additional Shares at the Second Closing is subject to the satisfaction of each satisfaction, on or prior to the Second Closing Date, of the following conditions (including conditions to be performed at the Second Closing)conditions, provided that these conditions are for Purchaser’s sole benefit and any of which may be waived by Purchaser at any time in Purchaser’s sole discretion:such Investor (as to itself only): (i) The First representations and warranties made by the Company in Section 4 hereof shall be true and correct in all material respects on the date hereof and on the Second Closing Date (except to the extent any such representation or warranty expressly speaks as of a specific date, in which case such representation or warranty shall be true and correct as of such date). The Company shall have been consummatedperformed all obligations and covenants herein required to be performed by it on or prior to the Second Closing Date. The Company shall have delivered a certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the Second Closing Date, certifying to the fulfillment of the condition specified in this Section 6.2(a)(i). (ii) The Company shall have delivered a duly executed Second Closing Note being so purchased obtained any and all consents, permits, approvals, registrations and waivers necessary or appropriate for the purchase and sale of the Additional Shares and the consummation of the other transactions contemplated by Purchaser at the Transaction Documents to be consummated on or prior to the Second Closing (each Date, including, without limitation, any necessary stockholder consent, all of which shall be in such denominations as Purchaser shall request)full force and effect. (iii) The Common Stock Company, the Existing Investors, the Insiders and the Officers and Directors shall have performed all actions required to be taken by them prior to the Second Closing pursuant to the Transaction Documents, and each of the Transaction Documents shall be listed on the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange in full force and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely for the foreseeable futureeffect. (iv) The representations No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have been issued, and warranties no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the Company shall be true and correct as of transactions contemplated by the date when made and as of the Second Closing as though made at that time and the Transaction Documents. (v) The Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s counsel shall have received delivered a certificate, executed by the Chief Executive Officer or Chief Financial Officer on behalf of the CompanyCompany by its Secretary, dated as of the Second Closing to Date, certifying the foregoing effect and as to such other matters as may be reasonably requested resolutions adopted by Purchaser. (v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of Board approving the transactions contemplated by the Transaction Documents, certifying the current versions of the Articles of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of Persons signing the Transaction Documents and related documents on behalf of the Company. (vi) The Investors shall have received an opinion from Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP, dated as of the Xxxxxx Xxxxxxx Xxte, in substxxxxxxly xxx form of Appendix I. (vii) No stop order or suspension of trading shall have been imposed by Nasdaq, the OTC Bulletin Board, the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock. The Company shall not have received notice of the ineligibility of the Common Stock for trading on the OTC Bulletin Board or that it is violation of any Nasdaq, OTC Bulletin Board or SEC rule, regulation or interpretation which could lead to such ineligibility. (viii) The Company shall have delivered to its transfer agent irrevocable instructions to issue and deliver to each Investor (or in such nominee name(s) as designated by such Investor in writing) certificates evidencing such number of Additional Shares as set forth on the signature pages to this Agreement. (viix) Purchaser’s counsel The Company shall have received approved an opinion increase in the shares available for grant under the Equity Incentive Plan by a total of 22,062,664 shares of Common Stock, such that the Company’s outside legal counsel, dated as of available pool under its the Equity Incentive Plan immediately following the Second Closing, in the form attached hereto as Exhibit E. (vii) The Registration Statement Closing shall have been declared effective by the SEC, and shall be available for use by Purchaser for the resale equal 25,659,664 shares of all of Purchaser’s Registrable Securities (as defined in the Registration Rights Agreement), within 120 days of the date of the First ClosingCommon Stock. (viiix) No proceeding commenced by or against The stockholders of the Company shall have approved an increase in number of shares of Common Stock authorized under any provision the Company's Articles of the United States Bankruptcy Code or under any other foreignIncorporation to 500,000,000 shares (as adjusted for stock splits, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, combinations or other similar relief shall have occurredtransactions). (ixxi) Since the First ClosingClosing Date, there shall have been no event has occurred which has had a Material Adverse Effect (as defined in Section 3.1)Effect.

Conditions to the Second Closing. a. Conditions to the Company's Obligation to Sell the Series D Preferred Shares. The obligation of Purchaser the Company hereunder to purchase issue and sell the Second Closing Note on Series D Preferred Shares and the date of Warrants to be issued in connection therewith to each Buyer at the Second Closing is subject to the satisfaction satisfaction, at or before the date of the Second Closing of each of the following conditions (including conditions to be performed at the Second Closing)thereto, provided that these conditions are for Purchaser’s the Company's sole benefit and may be waived by Purchaser the Company at any time in Purchaser’s its sole discretion: (i) The First Closing applicable Buyer shall have delivered the Series D Purchase Price to the Escrow Agent in accordance with Section l(c) above, and an aggregate Series D Purchase Price of at least $7,500,000 shall have been consummatedreceived by the Escrow Agent. (ii) The Company shall have delivered a duly executed Second Closing Note being so purchased by Purchaser at the Second Closing (each in such denominations as Purchaser shall request). (iii) The Common Stock shall be listed on the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely for the foreseeable future. (iv) The representations and warranties of the Company applicable Buyer shall be true and correct in all material respects as of the date when made and as of the date of the Second Closing as though made at that time (except for representations and warranties that speak as of a specific date which representations and warranties shall be correct as of such date), and the Company applicable Buyer shall have performed, satisfied and complied in all material respects with the covenants covenants, agreements and agreements conditions required by this Agreement and the other Investment Agreements to be performed performed, satisfied or complied with by the Company applicable Buyer at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s counsel shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as date of the Second Closing to the foregoing effect and as to such other matters as may be reasonably requested by PurchaserClosing. (viii) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (vi) Purchaser’s counsel shall have received an opinion of the Company’s outside legal counsel, dated as of the Second Closing, in the form attached hereto as Exhibit E. (vii) The Registration Statement shall have been declared effective by the SEC, and shall be available for use by Purchaser for the resale of all of Purchaser’s Registrable Securities (as defined in the Registration Rights Agreement), within 120 days of the date of the First Closing. (viii) No proceeding commenced by or against the Company under any provision of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief shall have occurred. (ix) Since the First Closing, no event has occurred which has had a Material Adverse Effect (as defined in Section 3.1).

Conditions to the Second Closing. (a) Conditions to the Investors' Obligations. The obligation of Purchaser hereunder each Investor to purchase the Second Closing Note on the date of Additional Shares at the Second Closing is subject to the satisfaction of each satisfaction, on or prior to the Second Closing Date, of the following conditions (including conditions to be performed at the Second Closing)conditions, provided that these conditions are for Purchaser’s sole benefit and any of which may be waived by Purchaser at any time in Purchaser’s sole discretion:such Investor (as to itself only): (i) The First representations and warranties made by the Company in Section 4 hereof shall be true and correct on the date hereof and on the Second Closing Date (except to the extent any such representation or warranty expressly speaks as of a specific date, in which case such representation or warranty shall be true and correct as of such date). The Company shall have been consummatedperformed all obligations and covenants herein required to be performed by it on or prior to the Second Closing Date. The Company shall have delivered a certificate, executed on behalf of the Company by its Chief Executive Officer or its Chief Financial Officer, dated as of the Second Closing Date, certifying to the fulfillment of the condition specified in this Section 6.2(a)(i). (ii) The Company shall have delivered a duly executed Second Closing Note being so purchased by Purchaser at the Second Closing (each in such denominations as Purchaser shall request). (iii) The Common Stock shall be listed on the Nasdaq SmallCap Marketobtained any and all consents, the Nasdaq National Marketpermits, the New York Stock Exchange approvals, registrations and waivers necessary or the American Stock Exchange and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely appropriate for the foreseeable future. (iv) The representations purchase and warranties sale of the Company shall be true and correct as of the date when made and as of the Second Closing as though made at that time Additional Shares and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s counsel shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Second Closing to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser. (v) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (viiii) Purchaser’s counsel No judgment, writ, order, injunction, award or decree of or by any court, or judge, justice or magistrate, including any bankruptcy court or judge, or any order of or by any governmental authority, shall have received an opinion been issued, and no action or proceeding shall have been instituted by any governmental authority, enjoining or preventing the consummation of the Company’s outside legal counseltransactions contemplated by this Agreement. (iv) The Company shall have delivered a certificate, executed on behalf of the Company by its Secretary, dated as of the Second ClosingClosing Date, certifying the resolutions adopted by the Board approving the transactions contemplated by this Agreement, certifying the current versions of the Articles of Incorporation and Bylaws of the Company and certifying as to the signatures and authority of Persons signing this Agreement and related documents on behalf of the Company. (v) The Investors shall have received an opinion from Hanson, Bridgett, Marcus, Vlahos & Rudy, LLP, dated as of the Xxxxxx Xxxxxxx Xxte, in the substxxxxxxly xxx form attached hereto as Exhibit E.A. (vi) No stop order or suspension of trading shall have been imposed by Nasdaq, the OTC Bulletin Board, the SEC or any other governmental or regulatory body with respect to public trading in the Common Stock. The Company shall not have received notice of the ineligibility of the Common Stock for trading on the OTC Bulletin Board or that it is violation of any Nasdaq, OTC Bulletin Board or SEC rule, regulation or interpretation which could lead to such ineligibility. (vii) The Registration Statement Company shall have been declared effective delivered to its transfer agent irrevocable instructions to issue and deliver to each Investor (or in such nominee name(s) as designated by such Investor in writing) certificates evidencing such number of Additional Shares as set forth on the SEC, and shall be available for use by Purchaser for the resale of all of Purchaser’s Registrable Securities (as defined in the Registration Rights signature pages to this Agreement), within 120 days of the date of the First Closing. (viii) No proceeding commenced by or against the Company under any provision of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief shall have occurred. (ix) Since the First Closing, no event has occurred which has had a Material Adverse Effect (as defined in Section 3.1).

Conditions to the Second Closing. The obligation of Purchaser hereunder to purchase the Series B Preferred Stock and Second Closing Note Warrant to be purchased by it on the date of the Second Closing is subject to the satisfaction of each of the following conditions (including conditions to be performed at the Second Closing)conditions, provided that these conditions are for Purchaser’s 's sole benefit and may be waived by Purchaser (with respect to it) at any time in Purchaser’s 's sole discretion: (ia) The First Closing Company shall have been consummatedexecuted the signature page to this Agreement and the Registration Rights Agreement and delivered the same to Purchaser. (iib) The Company shall have delivered a (i) duly executed Second Closing Note certificates for the Series B Preferred Stock (in such denominations as Purchaser shall request) being so purchased by Purchaser at the Second Closing Closing, (each ii) the Second Warrant, and (iii) the Warrant to be issued in such denominations as Purchaser shall requestexchange for the Initial Warrant pursuant to Section 1.1(c). (iiic) The Common Stock shall be listed on the Nasdaq SmallCap Market, the Nasdaq National MarketMarket System, the New York Stock Exchange or the American Stock Exchange and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National MarketMarket System, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting de-listing or suspension shall be reasonably likely for the foreseeable future. (ivd) The representations and warranties of the Company shall be true and correct in all material respects as of the date when made and as of the Second Closing as though made at that time and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s 's counsel shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Second Closing to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser. (ve) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (vif) Purchaser’s 's counsel shall have received an opinion the officer's certificate described in Section 3.3, dated as of the Second Closing. (g) Purchaser's counsel shall have received opinions of the Company’s 's outside legal counsel, dated as of the Second Closing, Closing from firms and in form and substance reasonably acceptable to Purchaser. (h) The Company's transfer agent has agreed to act in accordance with irrevocable instructions in the form attached hereto as Exhibit E.EXHIBIT D to the Securities Purchase Agreement, which instructions shall apply to both the Series A Preferred Stock and Series B Preferred Stock. (viii) The Registration Statement There shall have been declared effective be no breach by the SECCompany of this Agreement or of any other agreement entered into in connection herewith, and shall be available for use by Purchaser for the resale of all of Purchaser’s Registrable Securities no Redemption Event (as defined in the Series A Certificate of Designation) shall have occurred and there shall be no state of facts which, if continued, would become a Redemption Event with the lapse of time. (j) No Bankruptcy Event (as defined in the Series A Certificate of Designation) shall have occurred. (k) The Series B Certificate of Designation shall have been accepted for filing with the Secretary of State of the State of Delaware and a copy thereof certified by the Secretary of State of Delaware shall have been delivered to Purchaser. (l) The Company shall have prepared for filing with the Securities and Exchange Commission, and taken all actions necessary for the filing of (other than instructing the Company's filing agent to so file), the Second Registration Statement (as defined in Section 2.1 of the Registration Rights Agreement), within 120 days including payment of the date registration fee, EDGARization of the First ClosingSecond Registration Statement, and obtaining all necessary consents and signatures thereto. (viii) No proceeding commenced by or against the Company under any provision of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief shall have occurred. (ix) Since the First Closing, no event has occurred which has had a Material Adverse Effect (as defined in Section 3.1).

Conditions to the Second Closing. The obligation (a) Conditions to the Obligations of Purchaser hereunder to purchase Newco LP and the Second Closing Note on the date Investors. The obligations of Newco LP and the Second Closing is Investors to consummate the transactions contemplated hereby at the Second Closing are subject to the satisfaction of the following condition: no ruling, order, injunction, decree, statute, rule or regulation of any governmental authority shall prevent the consummation of the transactions contemplated hereby; provided, however, that the parties shall use all commercially reasonable efforts to cause any such decree, ruling, injunction or other order to be vacated or lifted. (b) Conditions to the Obligations of the Second Closing Investors. The obligations of each Second Closing Investor to consummate the transactions contemplated hereby at the Second Closing are subject to the satisfaction or waiver, on or before the Second Closing Date, of the following conditions (including conditions to be performed at the Second Closing), provided that these conditions are for Purchaser’s sole benefit and may be waived by Purchaser at any time in Purchaser’s sole discretionadditional conditions: (i) The First Closing shall have been consummated. (ii) The Company shall have delivered a duly executed Second Closing Note being so purchased by Purchaser at the Second Closing (each in such denominations as Purchaser shall request). (iii) The Common Stock shall be listed on the Nasdaq SmallCap MarketRepresentations, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange Warranties and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National Market, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely for the foreseeable future. (iv) Covenants of Newco LP. The representations and warranties of Newco LP set forth in Section 8 of this Agreement shall be true and correct in all material respects as of the Company Second Closing Date except for such breaches as would not have a Material Adverse Effect on Newco LP; provided, however, that if any of the representations and warranties are already qualified as to Material Adverse Effect, such representation or warranty shall be true and correct as of the date when made and such dates in all respects (i.e., as of the Second Closing as though made at that time and the Company written). Newco LP shall have performed, satisfied and complied with the performed in all material respects its respective covenants and agreements required by set forth in this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to or at the Second Closing; provided, however, that if any of the covenants are already qualified in any respect by materiality or as to Material Adverse Effect, such covenant shall have been performed in all respects (i.e., as written). Newco LP shall not have taken any action which would violate any provision of the Newco LP Agreement. At the Second Closing, in Newco LP shall deliver to each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse Effect. Purchaser’s counsel shall have received a Second Closing Investor an officer's certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Second Closing Date and duly executed by an executive officer of Newco GP, certifying as to the foregoing effect satisfaction of the condition set forth in clause (xiii) below and as to such other matters as may be reasonably requested by Purchaser. Newco LP's compliance with the conditions applicable to it set forth in this clause (vi) No statuteand in clauses (ii), rule(iii), regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (vi) Purchaser’s counsel shall have received an opinion of the Company’s outside legal counsel, dated as of the Second Closing, in the form attached hereto as Exhibit E. (vii) The Registration Statement shall have been declared effective by the SEC, and shall be available for use by Purchaser for the resale of all of Purchaser’s Registrable Securities (as defined in the Registration Rights Agreement), within 120 days of the date of the First Closing. (viii) No proceeding commenced by or against the Company under any provision of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief shall have occurred. (ix) Since the First Closing, no event has occurred which has had a Material Adverse Effect (as defined in Section 3.1).

Conditions to the Second Closing. The obligation of Purchaser hereunder to purchase the Second Closing Note Convertible Securities and Warrants to be purchased by it on the date of the Second Closing is subject to the satisfaction of each of the following conditions (including conditions to be performed at the Second Closing), provided that these conditions are for Purchaser’s sole benefit and may be waived by Purchaser at any time in Purchaser’s sole discretion:): (i) The First Closing shall have been consummated. (ii) The Company shall have publicly announced that a Potential Customer has confirmed in writing to the Company that any of the Company's Batteries has been tested for both performance and safety and that such Batteries meet all of such Potential Customer's safety and performance specifications. (iii) The Company shall have delivered a duly executed Second Closing Note certificates for the Preferred Stock (in such denominations as Purchaser shall request) being so purchased by Purchaser at the Second Closing (each in such denominations as Purchaser shall request)Closing. (iiiiv) The Common Stock shall be listed on the Nasdaq SmallCap Market, the Nasdaq National MarketMarket System, the New York Stock Exchange or the American Stock Exchange and trading in the Common Stock shall not have been suspended by the Nasdaq SmallCap Market, the Nasdaq National MarketMarket System, the New York Stock Exchange or the American Stock Exchange, the SEC or other regulatory authority and no delisting or suspension shall be reasonably likely for the foreseeable future. (ivv) The representations and warranties of the Company shall be true and correct as of the date when made and as of the Second Closing as though made at that time and the Company shall have performed, satisfied and complied with the covenants and agreements required by this Agreement and the other Investment Agreements to be performed or complied with by the Company at or prior to the Second Closing, in each case, with respect to representations and warranties, except for such changes as would not have a Material Adverse EffectEffect or a material adverse effect on Purchaser's investment. Purchaser’s 's counsel shall have received a certificate, executed by the Chief Executive Officer or Chief Financial Officer of the Company, dated as of the Second Closing to the foregoing effect and as to such other matters as may be reasonably requested by Purchaser. (vvi) No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or endorsed by any court or governmental authority of competent jurisdiction or any self-regulatory organization having authority over the matters contemplated hereby which prohibits the consummation of any of the transactions contemplated by this Agreement. (vivii) Purchaser’s 's counsel shall have received an opinion the officer's certificate described in Section 3.3, dated as of the Second Closing. (viii) Purchaser's counsel shall have received opinions of the Company’s 's outside legal counsel, dated as of the Second Closing, in the form used in the First Closing, with respect to matters as of the Second Closing. (ix) The Company's transfer agent has agreed to act in accordance with irrevocable instructions in the form attached hereto as Exhibit E.EXHIBIT D. (viix) The Registration Statement shall have been declared effective by the SEC, and shall be available for use by Purchaser for the resale of all of Purchaser’s the Registrable Securities (as defined in the Registration Rights Agreement), within 120 including, without limitation, shares of Conversion Shares and Warrant Shares receivable upon conversion or exercise of Securities to be purchased at the Second Closing and the Third Closing. (xi) The Closing Bid Price of the Common Stock in each of the ten (10) trading days of immediately prior to the date of the First ClosingSecond Closing shall have been equal to or greater than $3.00. (viiixii) There shall be no breach by the Company of this Agreement or of any other agreement entered into in connection herewith, no Redemption Event (as defined in the Certificate of Designation) shall have occurred and there shall be no state of facts which, if continued, would become a Redemption Event with the lapse of time. (xiii) No proceeding commenced by or against Bankruptcy Event (as defined in the Company under any provision Certificate of the United States Bankruptcy Code or under any other foreign, state or federal bankruptcy or insolvency law, assignments for the benefit of creditors, formal or informal moratoria, compositions, extensions generally with creditors, or proceedings seeking reorganization, arrangement, or other similar relief Designation) shall have occurred. (ixxiv) Since Baccarat's agreement to lend the First Company amounts totalling $7,500,000, as described in Section 7.1(x), shall remain in full force and effect, without any amendment thereto, as of the date of the Second Closing, and all such amounts shall be available for immediate borrowing thereunder, except to the extent (x) such amounts have been previously borrowed by the Company thereunder and not repaid as of such date, and provided that (i) if, as of the date of the Second Closing, $8,000,000 is immediately available under a working capital line of credit and/or IDB funding, secured (if secured) by the inventory, accounts receivable and/or fixed assets of the Company, and the Company shall have no event has occurred reason to expect that the availability of such funding shall terminate prior to the second anniversary of the Second Closing, Baccarat's agreement need not be in full force and effect, and (ii) if, as of the date of the Second Funding, an amount less than $8,000,000 is immediately available under such a working capital line of credit and/or IDB funding, and the Company shall have no reason to expect that the availability of such funding shall terminate prior to the second anniversary of the Second Closing, Baccarat's agreement need only be in full force and effect as to the amount by which has had a Material Adverse Effect (as defined in Section 3.1)$8,000,000 exceeds the amount so available under such funding.