Common use of First Closing Clause in Contracts

First Closing. i. The obligations of KiOR to sell the Notes, and of the Purchasers to purchase, severally and not jointly, the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions: (a) the notifications of the Purchasers 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; and (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. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) each Purchaser shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby; (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness of the Company to the Purchaser, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated by the terms of the Existing Loan as in effect on the date hereof, such amounts are deemed to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Company shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral; (b) the Company shall have delivered to each Purchaser certified copies of resolutions of the Company’s Board of Directors, and with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval of this Agreement, the transactions contemplated hereunder (including the due authorization and issuance of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction Documents; (c) the Company and each of its Subsidiaries party hereto shall have delivered to each Purchaser certified copies of the Certificate of Incorporation and the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party hereto; (d) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC and Lien searches and other evidence satisfactory to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation of the foregoing, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with the First Closing); (f) the representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of the First Closing; (g) the Company shall have performed and complied with any covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the First Closing; (h) the Chief Executive Officer of KiOR shall deliver to the Purchasers at the First Closing a certificate certifying that the conditions specified in Sections 3.1(A)(iii)(f) and 3.1(A)(iii)(g) have been fulfilled; (i) KiOR shall have received all consents, authorizations or approvals referred to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (j) 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 Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed by the Purchasers and the Company; (l) 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; (m) the Company shall have affected the Amendment to Existing Loan; (n) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each 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 underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note in the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such Purchaser.

First Closing. i. The obligations of KiOR This Agreement may be terminated at any time prior to sell the Notes, and First Closing: (i) by mutual written consent of the Purchasers Seller Parent and the Buyer Parent; (ii) by either the Seller Parent or the Buyer Parent, upon written notice to purchasethe other, severally if: (A) the First Closing shall not have occurred on or before April 19, 2022; provided that if on such date a MTI Restraint remains in full force and not jointlyeffect, Seller Parent shall have the right, exercisable in its sole and absolute discretion, to extend such date for up to an additional three (3) months (as it may be so extended, the Notes are subject “Outside Date”); provided, further, that the right to terminate this Agreement under this Section 9.1(a)(ii)(A) shall not be available to any Party whose failure or whose Affiliate’s failure to perform any covenant or obligation under this Agreement has been the fulfillment, primary cause of or has primarily resulted in the failure of the First Closing Transactions to be consummated on or before the First Closing, Outside Date; (B) (1) any law or statute enacted or promulgated by a Governmental Entity of each competent jurisdiction in any Applicable Jurisdiction makes illegal the consummation of any of the following conditions: Transactions, (a2) other than as referenced in clause (C) of this Section 9.1(a)(ii), any final Order issued by a Governmental Entity of competent jurisdiction in connection with any Antitrust Law in any Applicable Jurisdiction enjoins or prohibits the notifications consummation of any of the Purchasers and KiOR pursuant to Transactions (including any such Order issued in connection with the HSR ActFilings or otherwise relating to an Antitrust Approval or other Requisite Governmental Approval, if anyas applicable); (3) a Deemed CFIUS Order is issued with respect to any of the Transactions; or (4) any Requisite Governmental Approval is denied or rejected, shall have been made and the applicable waiting Governmental Entity otherwise affirmatively declines to issue such Requisite Governmental Approval, or any applicable period and any extensions thereof during which the applicable Governmental Entity is required to act upon such Requisite Governmental Approval shall have expired without such Governmental Entity issuing such Requisite Governmental Approval; provided that the right to terminate this Agreement under this Section 9.1(a)(ii)(B) shall not be available to any Party whose failure or whose Affiliate’s failure to perform any covenant or obligation under this Agreement has been terminatedthe primary cause of or has primarily resulted in such Order, a Deemed CFIUS Order or failure of such Requisite Governmental Approval, as applicable; andor (bC) consummation as a result of an Action commenced by MTI or any of its Affiliates against the Seller Parent, any other Seller, the Buyer Parent, any other Buyer, or any of their respective Affiliates based upon claims arising out of any MTI Agreement, the Transactions are, pursuant to an Order by a Governmental Entity of competent jurisdiction, enjoined from closing (a “MTI Restraint”) and such MTI Restraint remains in effect as of the transactions contemplated hereby or Outside Date; (iii) by the Transaction Documents Buyer Parent, upon written notice to the Seller Parent if the Seller Parent (or any other Seller) shall have breached or failed to perform any of its representations, warranties, covenants, obligations or other agreements contained in this Agreement, and such breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 8.2(a) or Section 8.2(b) and (B) is not cured prior to the Outside Date; provided that the Buyer Parent shall not have been restrained, enjoined the right to terminate this Agreement pursuant to this Section 9.1(a)(iii) if it (or otherwise prohibited or made illegal by, or conditioned upon the receipt any other Buyer) is then in material breach of any approvals of its representations, warranties, covenants or consents from Governmental Authorities underagreements set forth in this Agreement; (iv) by the Seller Parent, any applicable law. ii. The obligations of KiOR to sell the Notes are subject upon written notice to the fulfillmentBuyer Parent if the Buyer Parent (or any other Buyer) shall have breached or failed to perform any of its representations, on warranties, covenants, obligations or before other agreements contained in this Agreement, and such breach or failure to perform (A) would give rise to the failure of a condition set forth in Section 8.3(a) or Section 8.3(b) and (B) is not cured prior to the Outside Date; provided that the Seller Parent shall not have the right to terminate this Agreement pursuant to this Section 9.1(a)(iv) if it (or any other Seller) is then in material breach of any of its representations, warranties, covenants or agreements set forth in this Agreement; (v) by the Seller Parent, if (A) all of the conditions set forth in Section 8.1 and Section 8.2 (other than those conditions that by their nature are to be satisfied by actions taken at the First Closing and those conditions that have not been satisfied as a result of the breach of this Agreement by the Buyer Parent or any of its Affiliates) have been satisfied or properly waived, (B) the Seller Parent has irrevocably confirmed in writing to the Buyer Parent that (1) all of the conditions set forth in Section 8.3 (other than those conditions that by their nature are to be satisfied by actions taken at the First Closing) have been satisfied or have been waived by the Seller Parent and (2) the Seller Parent is prepared to consummate the First Closing, and (C) the Buyer Parent fails to consummate the First Closing within two (2) Business Days after the date the First Closing should have occurred pursuant to Section 2.5; provided that for the avoidance of each doubt, during such two (2) Business Day period following the date on which the First Closing should have occurred pursuant to Section 2.5, no Party shall be entitled to terminate this Agreement pursuant to Section 9.1(a)(ii)(A); or (vi) by the Buyer Parent, if (A) all of the following conditions, unless otherwise waived conditions set forth in Section 8.1 and Section 8.3 (other than those conditions that by KiOR: (a) each Purchaser shall their nature are to be satisfied by actions taken at the First Closing and those conditions that have delivered to each other party an executed original not been satisfied as a result of the breach of this Agreement and by the Seller Parent or any of its Affiliates) have been satisfied or properly waived, (B) the Buyer Parent has irrevocably confirmed in writing to the Seller Parent that (1) all other documents and instruments reasonably required to effectuate the transactions contemplated hereby; (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness of the Company to the Purchaser, the amount conditions set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” on the Schedule of Purchasers for the Notes being purchased in Section 8.2 (other than those conditions that by such Purchaser their nature are to be satisfied by actions taken at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers ) have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated been satisfied or have been waived by the terms of Buyer Parent and (2) the Existing Loan as in effect on the date hereof, such amounts are deemed Buyer Parent is prepared to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on or before consummate the First Closing, of each of the following conditions, unless otherwise waived by such Purchaser: and (aC) the Company shall have delivered Seller Parent fails to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral; (b) the Company shall have delivered to each Purchaser certified copies of resolutions of the Company’s Board of Directors, and with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval of this Agreement, the transactions contemplated hereunder (including the due authorization and issuance of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction Documents; (c) the Company and each of its Subsidiaries party hereto shall have delivered to each Purchaser certified copies of the Certificate of Incorporation and the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party hereto; (d) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC and Lien searches and other evidence satisfactory to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation of the foregoing, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with the First Closing); (f) the representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of the First Closing; (g) the Company shall have performed and complied with any covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the First Closing; (h) the Chief Executive Officer of KiOR shall deliver to the Purchasers at consummate the First Closing a certificate certifying within two (2) Business Days after the date the First Closing should have occurred pursuant to Section 2.5; provided that for the conditions specified in Sections 3.1(A)(iii)(favoidance of doubt, during such two (2) and 3.1(A)(iii)(g) Business Day period following the date on which the First Closing should have been fulfilled; (i) KiOR occurred pursuant to Section 2.5, no Party shall have received all consents, authorizations or approvals referred be entitled to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (j) 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 terminate this Agreement and the transactions contemplated by hereby, including, without limitation, the purchase and sale of the Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion pursuant to the Purchasers in a form to be mutually agreed by the Purchasers and the Company; (l) 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; (m) the Company shall have affected the Amendment to Existing Loan; (n) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each 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 underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note in the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such PurchaserSection 9.1(a)(ii)(A).

First Closing. i. The obligations (i) Subject to Section 5.4(c), during the period from the date of KiOR this Agreement until the earlier of the First Closing Date and any termination of this Agreement pursuant to sell ARTICLE IX, except (w) as permitted or expressly contemplated by this Agreement or any other First Closing Transaction Agreement, (x) as the NotesBuyer 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 of shall cause the Purchasers to purchase, severally Sellers and not jointly, the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditionsits other controlled Affiliates to: (aA) conduct the notifications Business in all material respects in the ordinary course of the Purchasers 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 terminatedbusiness consistent with past practice; and (bB) consummation maintain (1) the tangible Transferred Assets (including the Fab Assets) in their condition as of the transactions contemplated hereby or by the Transaction Documents shall not have been restraineddate of this Agreement, enjoined or otherwise prohibited or made illegal byordinary wear and tear excepted, or conditioned (2) insurance upon the receipt Transferred Assets and First Closing Leased Real Properties in such amounts and of such kinds comparable to that in effect on the date of this Agreement, and (3) their respective commercial relationships with customers, suppliers and other Persons with whom any approvals or consents Seller deals in connection with the Business in the ordinary course. (ii) Subject to Section 5.4(c), during the period from Governmental Authorities the date of this Agreement until the earlier of the First Closing Date 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. ii. The obligations of KiOR to sell Law or (z) as set forth on Schedule 5.4(a), the Notes are subject to Seller Parent shall not, and shall cause the fulfillmentSellers and its other controlled Affiliates not to, on or before in connection with the First ClosingBusiness and the Transferred Assets, of each take any of the following conditionsactions, unless otherwise waived by KiORas applicable: (aA) each Purchaser shall have delivered dispose of, assign, transfer, lease, sublease, license (other than licenses to each 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 party an executed original 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 this Agreement and all them, other documents and instruments reasonably required to effectuate than assets sold or disposed of in the transactions contemplated herebyordinary course of business consistent with past practice; (bB) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; andcreate, 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; (cC) each Purchaser shall pay 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 KiORsettle, by wire transfer 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 immediately available fundsbusiness, by cancellation release or conversion waive the enforcement of indebtedness 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 Company 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 Purchaser, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” on the Schedule of Purchasers Transferred Assets and necessary for the Notes being purchased 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) as may be required by such Purchaser at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the an applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated by 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 Existing Loan 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 amounts are deemed that the employee would no longer meet the criteria necessary to be converted into Notes 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 exchange 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 cancellation NAND Business or conversion of indebtedness of KiOR to the applicable Purchaser under SSD Business who would be a Business Employee (other than an Objecting Employee) if such individual was employed by the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on Sellers or before the First Closing, of each their Affiliates as of the following conditionsdate hereof, unless otherwise waived or transfer the employment of any individual employed by the Sellers or their Affiliates such Purchaser: (athat 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) the Company shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create 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 perfect the Liens of Agent with respect compensation and benefits substantially similar to all Collateralthose provided to similarly situated Business Employees; (bK) to the Company shall have delivered extent relating to each Purchaser certified copies of resolutions of the Company’s Board of DirectorsBusiness Employees, and with (i) enter into any negotiation in respect to each Subsidiary party heretoof, sole member, as applicable, evidencing approval of this Agreement, the transactions contemplated hereunder enter into or amend any Labor Agreement or (including the due authorization and issuance of ii) recognize or certify any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction DocumentsEmployee Representative Body; (cL) to the Company and each of its Subsidiaries party hereto shall have delivered extent relating to each Purchaser certified copies of the Certificate of Incorporation and Business Employees, effect or permit a plant closing, mass layoff or similar event under the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party heretoWARN Act; (dM) except as necessary in the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC and Lien searches and other evidence satisfactory to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation ordinary conduct of the foregoingBusiness consistent with past practice, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (1) grant or shall be terminated substantially contemporaneously with the First Closing); (f) the representations and warranties of the Company acquire, agree to grant to or acquire from any Person, or, except as set forth in Section 4 5.4(a)(ii)(O), dispose of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable or permit to lapse any rights to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as material Intellectual Property Rights of the First ClosingBusiness, 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; (gN) grant, modify or terminate any rights, or enter into any Contract, that would prevent, restrict or conflict with the Company shall have performed and complied with entry into or the grant of any covenantsrights or licenses under, agreementsor the performance of, obligations and conditions contained in this Agreement that are required to be performed or complied with by any of the Company on or before terms of the First ClosingIP License Agreements; (hO) except in the Chief Executive Officer ordinary course of KiOR shall deliver 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 Purchasers at 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 First Closing a certificate certifying Transferred IP; provided that the conditions specified in Sections 3.1(A)(iii)(f) and 3.1(A)(iii)(g) have Seller Parent may abandon a patent application after it has been fulfilledfinally rejected or when the next step for that application is to appeal a rejection; (iP) KiOR shall have received all consentsincorporate, authorizations embed, combine, link to, or approvals referred 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 Schedule 4.3accordance with GAAP consistent with past practice) the value of any inventories or revalue any of the Transferred Assets, in form all cases other than in the ordinary course of business and substance in accordance with 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 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 satisfactory be expected to KiOR and increase the Purchasersliability of the Buyer Parent or any of its Affiliates (including, and no 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 consentequity interests, authorization or approval shall have been revokedgrant any rights to purchase or acquire equity interests of OpCo; or (U) agree or commit to take any action described in this Section 5.4(a)(ii). (jiii) Notwithstanding the Company foregoing, nothing in this Section 5.4(a) shall have taken all action necessary to render prohibit or otherwise restrict in any way the provisions operation of any “fair price,” “moratorium,” “control share acquisition” the business of the Seller Parent or any other takeover or anti-takeover statute or similar federal or state lawof its Subsidiaries, 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 Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed by the Purchasers and the Company; (l) 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; (m) the Company shall have affected the Amendment to Existing Loan; (n) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each Purchaser with evidence of the filing of Listing of Additional Shares Notification Form with NASDAQ except solely with respect to the shares conduct of Class A Common Stock underlying the Notes 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 Buyer Parent or any Buyer any right to manage, control, direct or be issued involved in the management of the Seller Parent or any Seller at any time or the management of (A) the SSD Business, the First Closing Transferred Assets, the First Closing Assumed Liabilities or the Transferred SSD Employees prior to the First Closing or (B) the NAND Business, the Second Closing Transferred Assets, the Second Closing Assumed Liabilities or the Transferred NAND Employees prior to the Second Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note in the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such Purchaser.

First Closing. i. The obligations of KiOR to sell Upon the Notes, terms and of the Purchasers to purchase, severally and not jointly, the Notes are subject to the fulfillmentconditions set forth in this Agreement, on the initial closing (the First Closing ) shall take place as soon as practicable, but in no event later than ten (10) Business Days after the satisfaction of the conditions set forth in Section 5.1 and Section 6.1 (or before such other time as the Parties may agree) (the First Closing Date ). At the First Closing, of each of the following conditions: (a) the notifications of the Purchasers 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; and (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. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) each Purchaser shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby; (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness of the Company to the Purchaser, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated by the terms of the Existing Loan as in effect on the date hereof, such amounts are deemed to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Company shall have delivered to each other party an executed original file a Certificate of this Agreement Designation with the Secretary of State for the State of Delaware substantially in the form of Attachment I hereto that establishes the powers, preferences and all other documents and instruments reasonably required to effectuate special rights of the transactions contemplated hereby or to create and perfect Series A Convertible Preferred Stock (the Liens Series A Certificate of Agent with respect to all CollateralDesignation ); (b) the Company shall have delivered to each Purchaser certified copies file a Certificate of resolutions Designation with the Secretary of State for the State of Delaware in the form of Attachment II hereto that establishes the powers, preferences and special rights of the Company’s Board Series B Convertible Preferred Stock (the Series B Certificate of DirectorsDesignation , and together with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval the Series A Certificate of this AgreementDesignation, the transactions contemplated hereunder (including the due authorization and issuance Certificates of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction DocumentsDesignation ); (c) the Company and each of its Subsidiaries party the Purchaser shall enter into a Joint Development Agreement, in the form attached hereto shall have delivered to each Purchaser certified copies of as Exhibit A (the Certificate of Incorporation and the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party heretoJoint Development Agreement ); (d) in exchange for entering into the Joint Development Agreement, the Company shall issue to the Purchaser, and the Purchaser shall accept, such number of shares of Series A-0 Preferred equal to a 3% Ownership Interest; (e) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC execute and Lien searches deliver the Cross Licensing and other evidence satisfactory to each Purchaser that there are no Liens upon Intellectual Property Agreement, in the Collateral except Permitted Liens, and form attached hereto as Exhibit B (ii) without limitation of the foregoing, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with the First ClosingCross Licensing Agreement ); (f) the representations Company and warranties of the Company set forth in Section 4 of this Agreement Purchaser shall be true execute and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” deliver the Investor Rights Agreement, in the text thereof) on and form attached hereto as of Exhibit C (the First ClosingInvestor Rights Agreement ); (g) the Company and the Purchaser shall have performed execute and complied with any covenantsdeliver the Registration Rights Agreement, agreements, obligations and conditions contained in this the form attached hereto as Exhibit D (the Registration Rights Agreement that are required to be performed or complied with by ); (h) the Company on or before and the Purchaser shall execute and deliver the Standstill Agreement, in the form attached hereto as Exhibit E (the Standstill Agreement ); (i) the Company shall deliver an opinion of counsel to the Company substantially in the form of Exhibit F hereto (the Opinion of Counsel ) applicable to the First Closing; (hj) the Chief Executive Officer Company and the Purchaser shall execute and deliver the Patent Assignment Agreement, in the form attached hereto as Exhibit H ( Patent Assignment Agreement ); (k) the President of KiOR the Company shall deliver to the Purchasers Purchaser at the First Closing a certificate certifying that the conditions specified in Sections 3.1(A)(iii)(fSection 5.1(a) and 3.1(A)(iii)(gSection 5.1(b) have been fulfilled; (i) KiOR shall have received all consents, authorizations or approvals referred to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (jl) the Company shall have taken reserve a sufficient number of shares of Common Stock to account for the conversion of 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 outstanding Series A Preferred (taking into account the transactions contemplated by hereby, including, without limitation, the purchase and sale of the Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed by the Purchasers and the Company; (l) 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;First Closing); and (m) the Company shall have affected the Amendment to Existing Loan; (n) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each 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 underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall haveexecute and deliver any other documents, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement certificates and agreements necessary or desirable to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note in accomplish the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such Purchaserforegoing.

First Closing. i. The obligations of KiOR to sell the Notes, and closing of the Purchasers Merger (the “First Closing”) shall take place as soon as practicable, but no later than two Business Days after the later of (i) the satisfaction or waiver of the last to purchase, severally and not jointly, be satisfied or waived of the Notes are subject conditions set forth in ARTICLE 6 applicable to the fulfillment, on or before the First Closing, Closing and (ii) (A) receipt of each FINRA’s approval of the following conditions: (a) the notifications of the Purchasers and KiOR pursuant application by B. Xxxxx & Co., LLC under FINRA Rule 1017 with respect 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; and (b) consummation of the transactions contemplated hereby (the “FINRA Approval”) or by (B) if the Transaction Documents shall FINRA Approval is 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. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or received before the First Closingdate that is thirty-one (31) calendar days after the date of submission by B. Xxxxx & Co., LLC of each of such application, such thirty-first (31st) calendar day (or, if such date is not a Business Day, then the following conditions, unless otherwise waived by KiOR: next succeeding Business Day) (a) each Purchaser shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby; (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness of the Company to the Purchasersuch date, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the First ClosingClosing Date”). The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held at the offices of Mxxxxxxx & Fxxxxxxx LLP, 10000 Xxxx Xxxxx Xxxxx, Xxxxx 000, Xxx Xxxxx, Xxxxxxxxxx 00000, unless the parties hereto otherwise agree in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, writing. Subject to the extent contemplated by the terms of the Existing Loan as in effect on the date hereof, such amounts are deemed to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Company shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral; (b) the Company shall have delivered to each Purchaser certified copies of resolutions of the Company’s Board of Directors, and with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval provisions of this Agreement, the transactions contemplated hereunder (including the due authorization and issuance of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction Documents; (c) the Company and each of its Subsidiaries party parties hereto shall have delivered cause the Merger to each Purchaser certified copies be consummated by filing a certificate of merger with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL in substantially the form attached hereto as Exhibit A (the “Certificate of Merger”) (the time of such filing with the Secretary of State of the State of Delaware (or such later time as may be agreed in writing by Parent and Seller and specified in the Certificate of Incorporation and Merger) being the Bylaws, or other organizational documents, “Effective Time”) as applicable, each soon as amended through the First Closing, of the Company and each Subsidiary party hereto; (d) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC and Lien searches and other evidence satisfactory to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation of the foregoing, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with the First Closing); (f) the representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) practicable on and as of the First Closing; (g) the Company shall have performed and complied with any covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the First Closing; (h) the Chief Executive Officer of KiOR shall deliver to the Purchasers at the First Closing a certificate certifying that the conditions specified in Sections 3.1(A)(iii)(f) and 3.1(A)(iii)(g) have been fulfilled; (i) KiOR shall have received all consents, authorizations or approvals referred Date. Subject to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (j) 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 Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed by the Purchasers and the Company; (l) 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, the parties hereto shall cause the Second Merger to be consummated by filing a Certificate of Merger with the Secretary of State of the State of Delaware in accordance with the relevant provisions of the DGCL and the common stock DLCA in substantially the form attached hereto as Exhibit B (the “Second Certificate of KiOR shall have been at all times since Merger”) (the time of such date listed for trading on a Permitted Exchange; (m) filing with the Company shall have affected the Amendment to Existing Loan; (n) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each Purchaser with evidence Secretary of State of the filing State of Listing of Additional Shares Notification Form with NASDAQ with respect to the shares of Class A Common Stock underlying the Notes to Delaware (or such later time as may be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated agreed in writing by this Agreement to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note Parent and Seller and specified in the principal amount set forth opposite such Purchaser’s name under Second Certificate of Merger) being the heading “First Closing” on Second Merger Effective Time”) as soon as practicable after the Schedule Effective Time of Purchasers registered in the name of such PurchaserMerger.

First Closing. i. The obligations of KiOR Subject to sell the Notesconditions set forth in Section 6 below, and the closing of the Purchasers to purchase, severally purchase and not jointly, the Notes are subject to the fulfillment, on or before sale of the First Closing, of each of Closing Shares (the following conditions: (a) the notifications of the Purchasers 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; and (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. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before the "First Closing") shall take place on the date of execution and delivery of this Agreement (the "First Closing Date") at the offices of Cadwalader, of each of the following conditionsWickxxxxxx & Xaft, unless otherwise waived by KiOR000 Xxxxxx Xxxx, Xxx Xxxx, Xxx Xxxx. Xx xxx First Closing Date: (a) each Purchaser Investor other than the Sprout Shareholders will (i) contribute to the capital of the Company all of such Investor's right, title and interest in and to the Partnership (each a "Partnership Interest") and/or (ii) pay the Company such amounts, in immediately available funds (other than Reid, xxo will pay by secured note), as is set forth next to such Investor's name on Schedule 1.1 under the heading "Assets Contributed" with respect to First Closing Shares, and upon receipt of such Partnership Interests and/or funds or secured note, the Company shall have delivered deliver to each other party an executed original such Investor share certificates representing the First Closing Shares thereby purchased by such Investor, duly registered in the name of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated herebyapplicable Investor; (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness of the Company Sprout Shareholders, as the owners of all of the issued and outstanding stock of Sprout (the "Sprout Shares"), will contribute to the Purchaser, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated by the terms of the Existing Loan as in effect on the date hereof, such amounts are deemed to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Company shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral; (b) the Company shall have delivered to each Purchaser certified copies of resolutions capital of the Company’s Board of Directors, and with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval of this Agreement, the transactions contemplated hereunder (including the due authorization and issuance of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction Documents; (c) the Company and each of its Subsidiaries party hereto the Investors shall have delivered to each Purchaser certified copies of enter into the Certificate of Incorporation and the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party heretoShareholders' Agreement; (d) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for Sprout, as the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC and Lien searches and other evidence satisfactory to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation sole partners of the foregoingPartnership, all UCC filings in favor of Silicon Valley Bank shall amend and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with restate the First Closing); (f) 1995 Partnership Agreement pursuant to the representations Amended and warranties Restated Partnership Agreement of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and Partnership dated as of the First Closing;date hereof (as so amended and restated, the "Partnership Agreement"); and (ge) the Company shall have performed and complied with any covenants, agreements, obligations and conditions contained options to purchase interests in this Agreement that are required the Partnership or rights to be performed receive options to purchase interests in the Partnership issued or complied with by the Company on or before the First Closing; (h) the Chief Executive Officer of KiOR shall deliver reserved for issuance immediately prior to the Purchasers at the First Closing a certificate certifying that the conditions specified in Sections 3.1(A)(iii)(f) and 3.1(A)(iii)(g) have been fulfilled; (i) KiOR shall have received all consents, authorizations or approvals referred convert to in Schedule 4.3, in form and substance reasonably satisfactory options to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (j) the Company shall have taken all action necessary to render the provisions purchase 6,561,800 shares 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 Series A Common Stock of the Delaware General Corporation LawCompany, inapplicable to par value $.01 per share. The execution and delivery of this Agreement and the transactions contemplated by hereby, including, without limitation, First Closing shall be simultaneous in that neither the purchase execution and sale delivery of the Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed this Agreement nor any event required by the Purchasers and the Company; (l) trading in the common stock terms 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; (m) the Company shall have affected the Amendment to Existing Loan; (n) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each 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 underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at the First Closing; and (r) KiOR Closing shall deliver be deemed to each Purchaser a Note in the principal amount set forth opposite have occurred until such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of execution and delivery and all such Purchaserevents shall have occurred and when such execution and delivery and all such events have occurred, they shall be deemed to have occurred simultaneously.

First Closing. i. The obligations of KiOR to sell the NotesShares, and of Purchaser to purchase the Purchasers to purchase, severally and not jointly, the Notes Shares are subject to the fulfillment, on or before the First Closing, of each of the following conditions: (a) the notifications of the Purchasers 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; and; (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) 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 Notes Shares are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) each Purchaser shall have delivered to each other party KiOR an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby;; and (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness of the Company to the Purchaser, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of NotesPurchase Price” on the Schedule of Purchasers Exhibit A for the Notes Shares being purchased by such Purchaser at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated by the terms of the Existing Loan as in effect on the date hereof, such amounts are deemed to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, purchase the Notes Shares are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Company shall have delivered to each other party Purchaser an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all CollateralAgreement; (b) the Company shall have delivered to each Purchaser certified copies of resolutions of the Company’s Board of Directors, and with respect to each Subsidiary party hereto, sole member, as applicable, Directors evidencing approval of this Agreement, the transactions contemplated hereunder (including the due authorization and issuance of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction Documents; (c) the Company and each of its Subsidiaries party hereto shall have delivered to each Purchaser certified copies of the Certificate of Incorporation and the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party heretoCompany; (d) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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; (i) each Purchaser shall have received UCC and Lien searches and other evidence satisfactory to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation of the foregoing, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with the First Closing); (fe) the representations and warranties of the Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of the First Closing; (gf) the Company shall have performed and complied with any covenants, agreements, obligations and conditions contained in this Agreement that are required to be performed or complied with by the Company on or before the First Closing; (hg) the Chief Executive Officer of KiOR shall deliver to the Purchasers Purchaser at the First Closing a certificate certifying that the conditions specified in Sections 3.1(A)(iii)(f3.1(A)(i)(c), 3.1(A)(iii)(e) and 3.1(A)(iii)(g3.1(A)(iii)(f) have been fulfilled; (ih) KiOR shall have received all consents, authorizations or approvals referred to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the PurchasersPurchaser, and no such consent, authorization or approval shall have been revoked. (ji) 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 Notes, 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 thereof, and the grant herein of preemptive rights and the purchase and sale of equity of KiOR in connection with the exercise thereof; (kj) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers Purchaser in a form to be mutually agreed by the Purchasers Purchaser and the Company; (lk) 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; (m) the Company shall have affected the Amendment to Existing Loan; (nl) KiOR shall have executed and delivered the Registration Rights Agreement to the Purchasers;Purchaser; and (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (pm) the Company shall have provided each 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 underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note in the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such Purchaser.

First Closing. i. The obligations obligation of KiOR each Buyer hereunder to sell the Notes, and of the Purchasers to purchase, severally and not jointly, purchase the Notes are and the Shares at the First Closing is subject to the fulfillmentsatisfaction, on at or before the First ClosingClosing Date, of each of the following conditions: (a) the notifications of the Purchasers and KiOR pursuant to the HSR ActEach Company, if anyas applicable, shall have been made executed and delivered to each Buyer (i) the applicable waiting period and any extensions thereof Notes (in such denominations as such Buyer shall have expired or been terminated; andrequested prior to the First Closing) being purchased by such Buyer at the First Closing pursuant to this Agreement, (ii) each of the other Transaction Documents, and (iii) certificates representing the Shares (in such denominations as such Buyer shall have requested prior to the First Closing) being purchased by such Buyer at the First Closing pursuant to this Agreement. (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. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) each Purchaser Parent shall have delivered to each other party an executed original such Buyer a letter from Parent’s transfer agent certifying the number of this Agreement and all other documents and instruments reasonably required to effectuate shares of Common Stock outstanding as of a date within five (5) days of the transactions contemplated hereby;First Closing Date. (bc) Parent shall have executed and delivered to the Agent the Registration Rights Agreement. (d) Parent shall have delivered to Agent a copy of the CCSI Acquisition Documents, certified by an officer of Parent as being a true, complete and accurate copy of the CCSI Acquisition Documents and Agent shall have received a subordination agreement executed by Xxxx Xxxxxxx (as the same may be amended from time to time, the “CCSI Seller Subordination Agreement”) in form attached hereto as Exhibit O. (e) Each of the Companies shall have executed and delivered or caused to be delivered to the Agent, the Fee Letter. (f) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the Security Agreement. (g) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the deposit account control agreements and securities account control agreements, in form and substance satisfactory to the Agent, executed by each Purchaser Company and the applicable banks. (h) Parent shall have delivered to the Agent, the letter agreements, in form and substance satisfactory to the Agent, executed by the officers of Parent. (i) The Agent shall have received the opinions of Outside Legal Counsel, dated the First Closing Date, in substantially the forms of Exhibit H attached hereto. (j) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the Funds Flow Letter executed and delivered by each Company. (k) The Companies shall have executed and delivered a Non-Disclosure Agreement; andBorrowing Base Certificate to the Agent, which shall be in form and substance satisfactory to the Agent. (cl) each Purchaser Parent shall pay have delivered to KiOR, by wire transfer of immediately available funds, by cancellation or conversion of indebtedness the Agent a copy of the Irrevocable Transfer Agent Instructions, in the form of Exhibit I attached hereto, which instructions shall have been delivered to and acknowledged in writing by Parent’s transfer agent. (m) Each Company shall have executed and delivered, or caused to be delivered to the PurchaserAgent a certificate evidencing the formation or incorporation and good standing of such Company in such entity’s jurisdiction of formation or incorporation issued by the Secretary of State (or comparable office) of such jurisdiction, as of a date reasonably proximate to the amount set forth opposite First Closing Date. (n) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate evidencing such PurchaserCompany’s name under qualification as a foreign corporation or other entity and good standing issued by the heading “Aggregate Principal Amount Secretary of Notes” on State (or comparable office) of each jurisdiction in which such Company conducts business, as of a date reasonably proximate to the Schedule First Closing Date. (o) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate as to the fact that no action has been taken with respect to any merger, consolidation, liquidation or dissolution of Purchasers for such Company, or with respect to the Notes being purchased sale of substantially all of its assets, nor is any such action pending or contemplated. (p) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certified copy of such Company’s certificate or articles of incorporation (or other applicable governing document), as certified by the Secretary of State (or comparable office) of such entity’s jurisdiction of formation or incorporation, reasonably proximate to the First Closing Date. (q) Each Company shall have executed and delivered, or caused to be delivered to the Agent a certificate, executed by the secretary of such Company and dated the First Closing Date, as to (i) the resolutions consistent with Section 7.2 as adopted by such Purchaser Company’s board of directors (or other governing body) in a form reasonably acceptable to the Agent, (ii) such Company’s articles or certificate of incorporation (or other applicable governing document), (iii) such Company’s bylaws (or other applicable governing document), each as in effect at the First Closing. , and (iv) no action having been taken by such Company or its stockholders, directors or officers in contemplation of any amendments to items (i), (ii), or (iii) listed in this Section 5.1(q), as certified in the form attached hereto as Exhibit J. (r) The Common Stock (I) shall be designated for quotation by the Principal Market and (II) shall not have been suspended, as of the First Closing Date, by the SEC or the Principal Market from quotation nor shall not be deemed suspension by the SEC or the Principal Market have been threatened, as of the First Closing Date, either (A) in writing by the SEC or the Principal Market or (B) by falling below the minimum maintenance requirements of the Principal Market. (s) Each of the Companies shall have obtained all governmental, regulatory and third party consents and approvals, if any, necessary for the sale of the Securities at the First Closing. (t) Each of the Companies shall have obtained and delivered to occurthe Agent searches of UCC filings in the jurisdictions of formation or incorporation of each of the Companies, the jurisdiction of the chief executive offices of each of the Companies and all such payments by each jurisdiction where any Purchaser shall be deemed Collateral (as defined in the Security Agreement) is located or where a filing would need to be held made in escroworder to perfect the Agent’s and Holders’ security interest in the Collateral, until all Purchasers listed copies of the financing statements on file in such jurisdictions and evidence that no Liens exist other than Permitted Liens. (u) Each of the Schedule of Purchasers Companies shall have tendered executed and delivered to KiOR the applicable Principal Amount of Notes indicated thereonAgent, exceptor authorized the filing of, UCC financing statements for each appropriate jurisdiction as is necessary, in the Agent’s and Holders’ sole discretion, to perfect the extent contemplated by Agent’s and Holders’ security interest in the Collateral. (v) Agent shall have received evidence satisfactory to Agent that, upon the issuance of the initial Revolving Notes, the CCSI Acquisition shall close in accordance with the terms of the Existing Loan as in effect on CCSI Acquisition Documents. (w) Each of the date hereofCompanies shall have executed and delivered, such amounts are deemed or caused to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR delivered to the applicable Purchaser under Agent such landlord waivers, collateral access agreements or other similar documents as the Existing LoanAgent may request. iii. The obligations (x) Each of each Purchaser the Companies shall have delivered, or caused to Purchase, severally and not jointly, the Notes are subject be delivered to the fulfillmentAgent, on certificates evidencing any Pledged Equity (as defined in the Security Agreement) pledged to the Agent pursuant to the Security Agreement, together with duly executed in blank, undated stock or before unit powers attached thereto. (y) The Agent shall have received a certification from the First Closing, of each chief financial officer of the following conditionsParent in form and substance satisfactory to the Agent, unless otherwise waived by such Purchaser: (a) supporting the Company shall have delivered conclusions that after giving effect to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral; (b) the Company shall have delivered to each Purchaser certified copies of resolutions of the Company’s Board of Directors, and with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval of this Agreement, the transactions contemplated hereunder (including the due authorization and issuance of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction Documents; (c) Documents the Company Parent and each of its Subsidiaries party hereto are not Insolvent. (z) Since March 31, 2008, there shall have delivered been no change which has had or could reasonably be expected to each Purchaser certified copies of the Certificate of Incorporation and the Bylaws, or other organizational documents, as applicable, each as amended through the First Closing, of the Company and each Subsidiary party hereto; (d) the Company and each Subsidiary party hereto shall have delivered to each Purchaser a certificate of good standing for the Company and each Subsidiary party hereto 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;. (iaa) each Purchaser The Agent shall have received UCC and Lien searches and certificates from the Companies’ insurance broker or other evidence satisfactory to each Purchaser it that there are no Liens upon all insurance required to be maintained pursuant to this Agreement is in full force and effect, together with endorsements naming the Collateral except Permitted LiensAgent, and (ii) without limitation for the benefit of the foregoingHolders, all UCC filings in favor as additional insured and lender's loss payee thereunder. (bb) Each of Silicon Valley Bank and Lighthouse the Companies shall have been terminated (executed and delivered, or shall caused to be terminated substantially contemporaneously with delivered to the First Closing);Agent, a payoff letter, in a form and substance satisfactory to the Agent, executed and delivered by the Companies and Xxxxx Fargo Bank, N.A.. (fcc) Each of the Companies shall have executed and delivered, or caused to be delivered to the Agent, the Post-Closing Obligations Letter, substantially in form of Exhibit L attached hereto, executed and delivered by each Company. (dd) The representations and warranties of the each Company set forth in Section 4 of this Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in as of the text thereof) on date when made and as of the First Closing; Closing Date as though made at that time (g) the except for representations and warranties that speak as of a specific date, which shall be true and correct as of such specific date), and each Company shall have performed performed, satisfied and complied in all respects with any the covenants, agreements, obligations agreements and conditions contained in this Agreement that are required by the Transaction Documents to be performed performed, satisfied or complied with by the each Company on at or before prior to the First Closing; (h) Closing Date. The Agent shall have received certificates, executed by the Chief Executive Officer of KiOR shall deliver to the Purchasers at each Company, dated the First Closing a certificate certifying that Date, to the conditions specified foregoing effect and as to such other matters as may be reasonably requested by the Agent, in Sections 3.1(A)(iii)(f) and 3.1(A)(iii)(g) have been fulfilled;the form attached hereto as Exhibit K. (iee) KiOR shall have received all consents, authorizations or approvals referred to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (j) 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 Each 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 Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed by the Purchasers and the Company; (l) 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; (m) the Company shall have affected the Amendment to Existing Loan; (n) KiOR Companies shall have executed and and/or delivered the Registration Rights Agreement to the Purchasers; (o) the Company and the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each Purchaser with evidence of the filing of Listing of Additional Shares Notification Form with NASDAQ with respect Agent such other documents relating to the shares of Class A Common Stock underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur as the Agent or its counsel may reasonably request. (ff) No Event of Default (or event or circumstance that, with the passage of time, the giving of notice, or both, would become an Event of Default) shall have occurred and be continuing or would result from the issuance of the Notes at the First Closing; and (r) KiOR shall deliver to each Purchaser a Note in the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such Purchaser.

First Closing. i. The obligations of KiOR the Investor and the Corporation to sell complete the Notespurchase and sale of Debentures at the First Closing are conditional upon the satisfaction of, and of or compliance with, or waived (to the Purchasers to purchase, severally and not jointlyextent waivable) by the party who benefits from the condition, the Notes are subject to the fulfillment, on or before following conditions (the First Closing, of each of the following conditions:Closing Conditions): (a) the notifications of the Purchasers Investor duly completes, executes and KiOR pursuant returns 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; and (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. ii. The obligations of KiOR to sell the Notes are subject to the fulfillment, on or before the First Closing, of each of the following conditions, unless otherwise waived by KiOR: (a) each Purchaser shall have delivered to each other party an executed original of Corporation this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated herebySubscription Agreement; (b) each Purchaser shall have executed and delivered a Non-Disclosure Agreement; and (c) each Purchaser shall pay to KiOR, by wire transfer at the close of immediately available funds, by cancellation or conversion of indebtedness of the Company to the Purchaser, the amount set forth opposite such Purchaser’s name under the heading “Aggregate Principal Amount of Notes” business on the Schedule of Purchasers for the Notes being purchased by such Purchaser at the First Closing. The First Closing shall not be deemed to occur, and all such payments by any Purchaser shall be deemed to be held in escrow, until all Purchasers listed on the Schedule of Purchasers have tendered to KiOR the applicable Principal Amount of Notes indicated thereon, except, to the extent contemplated by the terms of the Existing Loan as in effect on the date hereof, such amounts are deemed to be converted into Notes in exchange for the cancellation or conversion of indebtedness of KiOR to the applicable Purchaser under the Existing Loan. iii. The obligations of each Purchaser to Purchase, severally and not jointly, the Notes are subject to the fulfillment, on or trading day before the First ClosingClosing Date, of each of the following conditions, unless otherwise waived by such Purchaser: (a) the Company Corporation shall have delivered to each other party an executed original of this Agreement and all other documents and instruments reasonably required to effectuate the transactions contemplated hereby or to create and perfect the Liens of Agent with respect to all Collateral; (b) the Company shall have delivered to each Purchaser certified copies of resolutions Investor written notice of the Company’s Board of DirectorsCommitment Warrant Exercise Price and, and with respect to each Subsidiary party hereto, sole member, as applicable, evidencing approval of this Agreementbased on same, the transactions contemplated hereunder (including the due authorization and issuance number of any shares of common stock acquired hereunder) and other transactions evidenced by the Transaction DocumentsCommitment Warrants to be issued; (c) at least two (2) trading days before the Company and each of its Subsidiaries party hereto First Closing Date, the Corporation shall have delivered to each Purchaser certified copies the Investor written notice of its intention to issue the Certificate of Incorporation and applicable Securities as listed in Section 2.1 for the Bylaws, or other organizational documents, as applicable, each as amended through applicable Closing (the First Closing, of the Company and each Subsidiary party heretoClosing Notice); (d) before or on the Company and each Subsidiary party hereto First Closing Date, the Investor shall have delivered to each Purchaser a certificate the Corporation written notice of good standing for the Company and each Subsidiary party hereto 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 Effectoutstanding Transaction Expenses; (ie) each Purchaser at least two (2) business days before the First Closing Date, the Corporation shall have received UCC and Lien searches and other evidence satisfactory delivered to each Purchaser that there are no Liens upon the Collateral except Permitted Liens, and (ii) without limitation Investor wire transfer instructions for the payment of the foregoing, all UCC filings in favor of Silicon Valley Bank and Lighthouse shall have been terminated (or shall be terminated substantially contemporaneously with the First Closing)this Subscription Amount; (f) all necessary regulatory and CSE approvals (if any) required for the representations entering into this Subscription Agreement and warranties the completion of the Company set forth in Section 4 of transactions contemplated under this Subscription Agreement shall be true and correct in all material respects (except that such materiality qualifier shall not be applicable have been obtained prior to any representations and warranties that already are qualified or modified by “materiality” or “Material Adverse Effect” in the text thereof) on and as of the First Closing; (g) before or on the Company First Closing Date, the Corporation shall have performed posted CSE Form 9 and CSE Form 6 on the CSE's website; (h) before the First Closing Date, a Share Lending Agreement shall have been entered into with respect to lending 600,000 freely tradeable Common Shares; (i) the sale and issuance of the Debentures and the Warrants issuable at the First Closing, the issuance of the Common Shares issuable upon the conversion of the Debentures and the issuance of the Common Shares issuable upon the exercise of the Warrants are exempt from the requirement to file a prospectus or registration statement and the requirement to prepare and deliver an offering memorandum or similar document under any applicable law relating to the sale of the Common Shares, or upon the issuance of such orders, consents or approvals as may be required to permit such sale without the requirement of filing a prospectus or registration statement or delivering an offering memorandum or similar document; (j) delivery of a legal opinion dated the First Closing Date from the Corporation’s counsel as to the conditions set out in items (f) and (i) above, in form and substance acceptable to the Investor and its legal counsel, acting reasonably; (k) (i) the representations, warranties and certifications of the Investor addressed to the Corporation in this Subscription Agreement, including in any other document delivered to the Corporation in connection with the Investment, are accurate and remain true and correct as at the First Closing Date; and (ii) the covenants and obligations of the Investor (as applicable to the First Closing) in this Subscription Agreement, including in any other document delivered to the Corporation in connection with the Investment, shall have been complied with any covenants, agreements, obligations and conditions contained in this Agreement that are required to be or performed or complied with by the Company Investor, in all material respects, on or before the First Closing; (h) the Chief Executive Officer of KiOR shall deliver to the Purchasers at the First Closing a certificate certifying that the conditions specified in Sections 3.1(A)(iii)(f) and 3.1(A)(iii)(g) have been fulfilled; (i) KiOR shall have received all consents, authorizations or approvals referred to in Schedule 4.3, in form and substance reasonably satisfactory to KiOR and the Purchasers, and no such consent, authorization or approval shall have been revoked. (j) 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 Notes, 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; (k) the Company’s counsel, WilmerHale, shall have delivered a legal opinion to the Purchasers in a form to be mutually agreed by the Purchasers and the CompanyDate; (l) trading (i) the representations, warranties and certifications of the Corporation addressed to the Investor 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 Subscription Agreement, including in any other document delivered to the Investor in connection with the Investment, are accurate and remain true and correct as at the common stock First Closing Date; and (ii) the covenants and obligations of KiOR the Corporation (as applicable to the First Closing) in this Subscription Agreement, including in any other document delivered to the Investor in connection with the Investment, shall have been at complied with or performed by the Corporation, in all times since such date listed for trading material respects, on a Permitted Exchangeor before the First Closing Date; (m) no order ceasing or suspending trading in the Company Common Shares on any stock exchange shall have affected the Amendment to Existing Loanbeen issued and no proceeding for such purposes shall be pending or threatened; (n) KiOR shall have executed all documents required pursuant to this Agreement, including without limitation, the Debentures to be issued by the Corporation, the Warrants to be issued by the Corporation, in each case in form and delivered the Registration Rights Agreement substance satisfactory to the PurchasersInvestor, acting reasonably; (o) delivery of an officer's certificate by the Company Corporation certifying (i) constating documents, (ii) authorizing board resolutions; (iii) incumbency; and (iv) that the lenders under the Existing Loan shall have entered into the Subordination Agreement; (p) the Company shall have provided each 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 underlying the Notes to be issued at the First Closing; (q) each other Purchaser shall have, substantially simultaneously with such Purchaser, consummated those transactions contemplated by this Agreement to occur at First Closing; and (r) KiOR shall deliver to each Purchaser a Note condition in the principal amount set forth opposite such Purchaser’s name under the heading “First Closing” on the Schedule of Purchasers registered in the name of such Purchaser.3.1